IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


/ 


O 


My 


4KC 


'4;     ///■> 


^"^^  #% 


rf" 


t^- 


t-^r 


% 


''& 


1.0 


I.I 


■  50  

1^'  IIIIIM 

!!  IM 

it:  i^ 


IIM 

2.2 

120 

1.8 


1.25 

—  1 

1.4 

1.6 

"^ 

6"     

► 

v] 


<p^ 


A^!!& 


'^ 


f 


Photographic 

Sciences 

Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


t^r 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institiit  Canadian  de  microreproductions  historiques 


\ 


vV 


^ 


» 


r©1Q 


Technical  and  Bibliographic  Notes/Notes  techniques  e.  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


L'Institut  a  microfilme  le  meilleur  exetiplaire 
gull  lui  a  ete  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-etre  uniques  du 
point  de  vue  bibliographiqce,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  m^thode  normalu  de  filmage 
sont  indiqu^s  ci-dessous. 


□  Coloured  covers/ 
Couverture  de  co  jleur 

— I  Covers  damaged/ 

, I  Couverture  endommagee 

I ^1  Covers  restored  and/or  laminated/ 

1 I  Couverture  restaurde  et/ou  pelliculee 

r~~l  Cover  title  missing/ 

! I  Le  titre  de  couverture  manque 


D 
D 
D 

n 


D 


Coloured  maps/ 

Cartes  gdographiques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  illustrations/ 
Planches  et/ou  illustrations  en  couleur 

Bound  with  other  materiel/ 
Relid  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

Lareliure  serree  peut  causer  de  I'ombre  ou  de  la 
distorsion  le  long  de  la  marge  interieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajoutdes 
lors  dune  restauration  apparaissent  dans  la  texte, 
mais,  lorsque  cela  dtait  possible,  ces  pages  n'ont 
pas  6ti  filmdes. 


n    Coloured  pages/ 
Pages  de  couleur 

□    Pages  damaged/ 
Pages  endommagees 

□    Pages  restored  and/or  laminated/ 
Pages  restaurees  et/ou  pelliculees 

I — l/Pages  discolouired,  stained  or  foxed/ 
I  Vi    Pages  decolorees,  tachetees  ou  piquees 


□    Pages  detached/ 
Pages  detachees 

r~>^Showthrough/ 
LIlI    Transparence 

□    Quality  of  print  varies/ 
Qualite  indgale  de  I'imi 


D 


pression 


□    Includes  supplementary  material/ 
Com 


Comprend  du  materiel  supplementaire 

y  edition  available/ 
le  Edition  disponible 


□    Only  edition  available/ 
Seu 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc..  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata.  une  pelure. 
etc.,  cnt  6t6  fi!m6es  A  nouveau  de  facon  a 
obtenir  la  meilleure  image  possible. 


I — 1/Additional  comments:/ 

LkJ    Commentaires  supplementares: 

Wrinkled  pages  may  film  slightly  out  of  focus. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  filmd  au  taux  de  reduction  indiqud  ci-dessous. 


10X 

14X 

18X 

22X 

26X 

30X 

/ 

V 

12X 


16X 


20X 


24X 


28X 


32X 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

Metropolita.i  Toronto  Library 
Canadian  History  Department 

The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


L'exemplaire  film6  fut  reproduit  grfice  d  la 
g6n6rosit6  de:  ^ 

Metropolitan  Toronto  Library 
Canadian  History  Department 

Les  images  suivantes  ont  6t6  reproduites  avec  la 
plus  grand  soin,  compte  tenu  de  la  condition  et 
de  la  nettet^  de  l'exemplaire  film6,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  beck  cover  when  appropriate.  All 
othar  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  ok'  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplalres  originaux  dent  la  couverture  en 
papier  est  itiprimde  sont  film^s  en  commen9ant 
par  le  premier  plat  et  en  terminant  soit  par  le 
dernidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration,  soit  par  le  second 
plat,  selon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  film6s  en  commen^ant  par  la 
premidru  page  qui  comporte  une  empreinte 
d'impressicn  ou  d'iUustration  et  en  terminant  par 
la  dernidre  page  qui  comporte  une  tellu 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  — ♦►  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 

Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Un  des  symboles  suivants  apparaitra  sur  la 
dernidre  image  de  chaque  microfiche,  selon  le 
cas:  le  symbole  — ♦-  signifie  "A  SUiVRE",  le 
symbole  V  signifie  "FIN". 

Les  cartos,  planches,  tableaux,  etc.,  peuvent  fetre 
film^s  d  des  taux  de  reduction  diff^rents. 
Lorsque  le  document  est  trop  grand  pour  etro 
raproduit  en  un  seul  clich6,  il  est  film^  k  partir 
de  Tangle  sup6rieur  gauchn,  de  gaucha  d  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  n^cessaire.  Les  diagrammes  suivants 
illustrent  la  m^thode. 


1 

2 

3 

1 


SUNDRY 


f 


|U 


RESOLUTIONS  akd  PROCEEDINGS, 


un.*'-' ''IN 


CASES 


BEFORE    THE 


Board  of  CommiJ]ioners, 


FOR    CARRYING   INTO    EFFECT 


THE  SIXTH  ARTICLE 


OF    THE 


TJR  EA  T  r 


or 


AMITY,  COMMERCE  AND  NAVIGATION, 


CONCLUDED    BETWEEN 


HIS  BRITANNIC  MAJESTY 


AND 


THE  UNITED  STATES  OF  AMERICA. 
f'Cb^U^W   V  l\Y^e^'i«*>-    \f[\^e^  &l^»w^    CV*v»^x^9,on-»  ) 

PHlLyiDELPHI^: 
Printed  by  R.  AITKEN,  No.  22,  Market  street. 


1799, 


^t^ 


LH., 


Tli.DLr 


1004 


tC(-C^(f-^Lf^ 


fwm-^Mwm-iwmm-m-tvt  w^^'tm  t^ 


CoMMI.S<;iONERS'    OfTICE, 

Philacielphlat  loth  July^  I'JOl' 


Present, 


Mr.  MACDONALD, 
Mr.  RICH, 
Mr.  FITZSIMONS, 
Mr.  GUILLEiMARD. 


The  Board  laid  down  the  following  rules,  viz  : 


c 


<LAIMS  will  only  be  received  from  the  claimant  in  perfon,  or  fromfome 
agent  appointed  by  him,  and  in  every  cafe  the  perfon  prefenting  the  claim  (hall  be 
informed  that  his  attendance  will  be  required. 

Every  claim  fhall  be  read  by  the  fecretary,  and  the  firft  objed  of  deliberation 
fhall  be,  whether  it  is  within  the  meaning  of  the  6th  article  of  the  treaty  between 
Great  Britain  and  the  United  States. 

If  the  Board  fliall  determine  that  fuch  claim  is  not  within  the  meaning  of  the 
faid  6th  article,  the  party  prefenting  the  fame  fhall  be  informed,  and  the  faid 
clami  with  the  vouchers  thereof  fiiall  be  returned. 

In  every  cafe  where  the  claim  i?  entertained  as  within  the  trenty,  notice  thereof 
ihall  be  given  to  the  attorney-general  of  the  United  States.     A  record  of  each 

claim. 


(     4     ) 

cliilm,  the  time  when  picftnted  and  a  lift  of  the  papers  accompanying  it,  faall  be 
kept  by  the  fccretary. 

On  the  application  of  the  attorney-general  of  the  United  States,  by  himfelfor 
the  pubUc  agents  appointed  by  law,  the  original  papers  refpcifl'ng  each  claim  fliall  be 
delivered  to  him,  and  a  receipt  taken  for  the  return  of  fuch  papers  within  eight 
days. 

Exfradecl  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secretary. 


Commissioners'  Office, 

Philadelphia,  6th  Nov.  1  797. 

Present,  as  before. 

The  following  amendment  and  explanation  of  one  of  the  rules  laid  down  by  the 
Board  on  the  10th  day  of  July  lad  was  adopted,  viz  : 

JL  HAT  on  the  prefeniing  and  reading  of  every  claim  or  complaint  the 
Board  will  either  immediately  or  upon  farther  confideratlon  rejed  it  on  its  own 
ftatement,  if  it  fhall  appear  not  to  contain  matter  entitling  it  to  be  entertained  by  the 
Board,  or  will  require  feme  additional  ftatement  or  explanation,  or  will  order 
notice  of  fuch  claim  to  be  ferved  upon  the  attorney-general  or  agent  for  the  United 
States,  that  the  fame  may  receive  an  anfwer  on  their  part  within  a  limited  time  ; 
but  that  an  order  for  the  fervlce  of  fuch  notice  (hall  not  be  confidered  as  implying 
any  opinion  or  declaration  that  the  cafe  is  within  the  meaning  of  the  treaty. 

■  Extradtdfrom  the  proceedings  of  the  Board. 

G.  EVANS,  Secretary. 


Commissioners' 


■:!' 


('   5     ) 


CoMMissiONtRs'  Orrics, 

Phlhulelfhhi,  dth  Nov,  1 797. 


PRESEMT,    /iS    BEFORS. 

O  RDF  RED— That  in  every  cafe,  on  the  prefentment  of  a  claim  by  an 
o.ent,  a  power"  of  attorney  fnall  either  be  produced  at  the  time  of  prefent.ng  the 
Claim    or^cnding  the  conf.dcration  thereof,  and  that  not.cc  be  g.ven  to    ho  agcn 
according!?,  in  order  th  t  fuch  power  of  attorney  if  not  tlien  produced  may  be 
procured  as  foon  as  pofilble. 

Extradcd  from  the  proceedings  of  the  Boanl 

G.  EVANS,  Secretary. 


Commissioners'  Office, 

Philadelphia^  Bih  Dec.  1797. 


Present,  as  before. 

Ordered— That  the  general  agent  for  claimants,  and  the  agent  for  the 
United  sfa^s  be  informed,  that  in  all  cafes  where  claimants  ^^.^^P^^^^.^^^^^e^ce 
!:?;raing  the.folvency  of  ^^^eir  ^^^^^^^  ^S  Id^id 

SeS^wlt;  p^luKl:^^^^^^^^^  of  the  claimants  to  maintain, 

that  it  is  not  incumbent  on  them  to  prove  fuch  iolvency. 

ExtraSedfrom  the  proceedings  of  the  Board, 

G.  EVANS,  Secretaiy. 


Commissioners' 


Commissioners*  Office, 

Philadelphia i  lUh  Dec.  1797. 

Present,  as  befors. 


O 


^RDERED—That  all  applications  for  the  examination  of  witnefles  /hall 
be  lodged  with  the  fecretary  ,n  writmg,  figned  by  the  agent  of  the  party  by  Avhom 
they  are  to  be  adduced  ;  and  fliall  flate  not  only  the  names  of  the  witness,  but 
the  points  generally  on  which  they  are  to  be  examined ;  and  that  a  copy  of  fuch 
apphcation  (hall  at  the  fame  time  be  delivered  to  the  agent  for  the  oppofition  party. 

E\lraUcd  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secretary, 


Commissioners'  Office, 

Philadelphia^  26th  Jan.  1798.. 

Present,  as  before. 


R 


;ESOLVED-~That  no  claim  or  complaint,  fhall  be  confidered  as  barred 
by  tne  limitation  of  t.me  in  the  treaty,  if  a  memorial  containing  the  full  demand 
has  been  duly  prefented  to  the  Board  within  -he  time  thereby  prelribed, ^dthough 
fueh  proceedings  at  law  as  may  from  the  circumftances  of  the  cafe  be  neceffaryfor 
the  purpofe  of  obtaining  evidence  in  Aipport  of  the  fame,  o.  any  part  thereof,  have 
«ot  been  completed  wulnn  the  time  lo  limited  ;  but  that  all  poffible  difpatch  and 
^,':all':yT.ZZ'''''  completing  fuch  proceedings  will  in  ever^  cafe  be 

Ext raaed  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secretary^ 


Commissioners* 


(     7    ) 


Commissioners*  Ojtice, 

Phihd.-'^h}n,  \9,lh  /tp^:l,  1:9''. 


Present,  as  sefore. 

vJrBERED — That  no  pleadings  in  cafes  before  the  Board,  fliall  in  fiV.axz 
be  printed  till  after  the  manufcripts  hiis  been  laid  before  them. 

ExtraHed  from  the  proceedings  of  the  Board. 

G.  EVANS,  Si:cRET/.RY. 


Com? 


Pb^ 


/!pr]U   179*^. 


Present,  as  befo»s. 

In  the  Cafe  of  Willi  AM  Cunningham,  and  others, 

JL  HE  anfwer  of  the  United  States,  figncd  by  their  agent,  having  in  this  cafe 
been  printed  and  laid  before  the  Board.  ORDERED — That  the  general  agent 
for  claimants,  or  attorney  for  thefe  claimants,  have  leave  to  fee  and  rc])ly  to  ti.j 
fame  within  three  weeks  ;  but  with  the  exception  of  the  introduiflory  argument, 
"  to  imprefs  on  the  commifTioners  (as  it  is  there  faid)  the  primary  importance  of 
underitanding  the  limits"  of  their  duty,  and  inftrufling  th^m,  on  the  authority  of 
Vattel,  and  with  reference  to  a  fuppofed  cafe,  of  manifeft  and  intentional  wron;-;, 
in  the  expediency  of  taking  care,  that  they  do  not  "  renew  uie  diffentions  between 
the  two  nations,"  by  deciding  in  a  manner  fo  palpably  "  olfurd,"  or  fo  clearly 
proceeding  from  "  corruption  or  flagrant  partialilyy'  as  to  entitle  "  either  wilivi  !■> 
difregard  the  award."  The  Board  make  no  further  animadverfion  on  the  abov: 
argument  than  thus  to  ftatc  its  import,  and  prohibit  all  illufion  to  fuch  topics  in 
future.  They  know  no  policy  but  that  of  jultice,  and  look  forward  to  no  conf;.-- 
quence  but  the  confcioufnefs  of  having  done  tlieir  duty. 

ORDERED 


I  I  ' 


(  8  ) 

ORDERED — That  the  reply  in  this  cafe  be  printed;  that  this  ovder  be  therein 
fully  recited,  and  copies  hereof  ferved  upon  the  agcnLs  for  both  parties. 

Exlra&  from  the  proceedings  of  the  Board, 

G.  EVANS,  Secretary- 


Commissioners'  Office, 
Philadelphia y  2\fl  May  1798. 


Present, 


Mr.  MACDONALD, 
Mr.  RICH, 
Mr.  FITZSIMMONS, 
Mr.  INNES,  AND 
Mr,  GUILLEMARD. 


In  the  Cafe  of  the  Right  Rev,  Charles  Inglis, 


The  Board  having  rcfunied  the  confideration  of  this  cafe,  caijif  *o  the 

following  refolutions,  viz. 

JvESOLVED — That  the  claimant's  charader  of  British  fubje(fl  was  not 
aireded  or  impaired  by  the  a^  of  attainder  and  confifcation,  pafTed  by  the  State  of 
New  York  on  the  2\ll  of  Oaober  1779,  attainting  him  with  the  Earl  of  Dun- 
more,  Governor  Tryon,  Sir,  Henry  Clinton  and  many  other  Britilh  fubjeds  who 
are  therein  defcribed,  not  as  fubjefts  of  the  State,  but  as"  perfons  holding  or 
claiming  property  within  the  State;'  and  forfeiting  and  confifcat  ng  their  whole 
cfhites  real  and  perfonal  for  their  adherence  to  his  Britannic  M.ijefty:  But  that 
i..-  the  contrary,  the  faid  ad  of  attainder  and  the  defcription  of  loyalift  or  refuge? 

applied 


(     9     ) 

applied  to  uie  claimant,  oa  the  prrt  of  the  United  States,  In  confequence  of  his 
iiiid  adherence,  are  conclufive  evidence  that  he  ftill  maintained  his  original  alle- 
giance : — that  therefore  he  is  entitled  to  claim  before  this  Board,  under  the  4th 
article  of  the  definitive  treaty  of  peace,  and  the  fixth  article  of  the  treaiy  of  amity 
between  his  faid  Majefty  and  the  United  Stales. 

RESOLVED — That  the  confifcation  of  the  debts  in  qucftion  before  the  peace 
is  no  bar  to  the  claim ;  and  that  the  Board  have  fo  determined  upon  the  fame  ^rounds 
.ind  principles  of  interpretation  refpeding  confif'ations  before  the  peace,  which  were 
i.  'opted  and  declared  by  the  judges  of  the  United  States  when  (in  the  cafe  of 
K>  milton's  againfl  Eaton)  they  I'ecided  in  their  circuit  court  for  North  Carolina 
diftri<5l.  that  debts  due  to  Britifh  fubjeds  who  refided  in  the  province  now  State 
of  North  Carolina  at  the  date  of  the  Declaration  of  Independence  an''.  ...  t  nv.ed 
there  to  refide  till  the  aoth  day  of  0(5tober  1777,  when  they  were  oh  y  :.a  by  luw 
either  '0  take  an  oath  of  abjuration  and  allegiance  to  the  State  or  to  depart;  and 
which  debts  had  been  confifcated  or  forfeited  to  the  State  before  the  peace,  were 
neverthelefs  due  and  owing  by  virtue  of  the  treaty. 

RESOLVED —  That  the  terms  of  the  faid  .;  !i  article  of  the  definitive  treaty  of 
peace,  are  in  themfelves  plain,  explicit  and  unambiguous;  and  do  not  require  cr  ad- 
mit of  any  conltrudion  or  explanation  from  the  5th  article,  to  which  the  4th  article 
bears  no  relation  whatever. 

ORDERED —  That  the  general  agent  for  claimants  and  the  agent  for  the 
United  States  be  furnifhed  with  copies  of  the  foregoing  refolutions. 

Fxtrciledjrom  the  proceedings  of  the  Board. 

G.  EVANS,  SECRETARri 


B 


Commissioners' 


il--^ ! 


(       10      } 


Commissioners'  OrFicr, 

Philadelphia,  2Bth  May,   1798, 


Present,      • 

Mr.  MACDONALD, 
Mr.  RICH, 
Mr.  FITZSIMONS. 
Mr.  GUILLEMARD. 


Oi 


In  the  Cafe  of  Charles  Inglis. 


'RDERED — That  the  agent  for  the  United  States  have  leave  on  or 
before  the  firft  day  of  June  next,  to  (hew  caufe  why  the  a6t  of  attainder  and  con- 
fifcation  pafTcd  by  the  State  of  New  York,  againft  the  claimant  before  the  peace, 
and  the  other  afts  of  that  State  fubfequent  to  the  peace,  with  the  ftatement  given 
on  the  part  of  the  United  States,  of  their  operation  andeffedt  as  neceflarily  diverting 
the  claimant  of  all  right  at  law,  ought  not  to  fatisfy  the  Board  that  at  law  he  could 
not  recover,  atd  why  the  additional  expence  and  delay  of  reforting  to  a  courfe  of 
judicial  proceedings,  Ly  which  the  eventual  lofs  might  be  greatly  increafed,  fliould 
now  be  incurred. 

Extraded  from  ihe  proceedings  of  the  Board. 

G.  EVANS,  Secretary, 


Commissioners'  Office, 

Philadelphia,   \fl  June,   1798, 

Present,  as  before. 

In  the  Cafe  of  Inglis. 

An  argument  on  the  part  of  the  United  States,  purfuant  to  the  order  or  rule  to 
ihew  caufe  of  the  29th  ultimo,  having  been  read, 

Ix  ESOLVED — That  the  faid  order  has  been  mifunderftood  ;  the  queftion 
being,  whetlicr  there  is  good  gw  3und  dy  the  law  of  the  land,  and  not  under  any 

lefolutioQ 


<  >>  ) 

refolu'.ion  of  the  Board  (which  cannot  affeifl  the  law  of  the  land  or  the  coaris  of 
juftice)  for  now  proceeding  judicially  in  the  recovery  of  the  debt  on  which  the 
claim  is  founded. 

Therefore,  ORDERED — That  the  agent  for  the  United  States  have  leave, 
on  or  before  the  6th  current,  to  add  to  the  argument  which  has  been  read,  what 
•he  may  think,  material  on  that  queftion. 

Exlracled  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secretarv. 


Commissioners'  Office, 
Philadelphia,  ^ih  ^une,   1798. 


Present,  js  before. 


In  the  Cafe  of  Inglis. 


JL  HE  Board  having  obferved  from  the  argument  read  at  the  laft  meeting 
on  the  part  of  the  United  States,  that  the  word  •*  interpretation"  made  ufe  of  in 
the  refolution  of  the  2 1  It  May  laft,  wherein  they  refer  to  the  principles  of  inter- 
pretation refpedling  the  confifcation  of  debts  before  the  peace,  which  were  declared 
by  the  judges  of  tlie  United  States  in  the  cafe  of  Hamilton's  againft  Eaton,  has 
l^en  mifunderftood.  " 

RESOLVED — For  the  prevention  of  future  argument  on  that  mlfapprehen- 
fion,  that  in  adopting  the  word  ht/erpretationt  tlie  Board  had  in  view  the  proper 
fenfe  of  the  word,  namely — the  meaning  of  the  article  as  to  the  right  thereby 
given  to  Britifh  creditors,  notwithftanding  fuch  confifcation  of  their  debts  without 
deciding  (upon  the  operation  of  that  article)  whether  it  did  or  did  not,  of  itfelf, 
repeal  the  exilting  law  of  particalar  States. 

ORDERED 


i|: 


(  l^  ) 


ORDERED — That  both  the  agents  be  furnifhed  with  copies  of  the  foregolnj 
refolution. 

EatraSed  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secretart. 


Commissioners'  Office, 

Philadelphia^  llth  June^  1798, 

Present,  as  before. 


Oj 


'RDERED — That  the  agent  for  the  adverfe  party  (hall  have  leaTe  to 
fee  every  paper,  in  every  cafe  before  the  Board,  though  there  may  be  no  fpecial 
order  for  that  purpofe  or  for  anj  anfwer  thereto. 

Exira£led  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secretary, 


1 
\ 


I 

I:.    , 
I, 

!  I 

V    I 


•  Commissioners'  Office 

Philadelphia,  l$th  June,  1 798, 

Present,  js  before. 

V-/ RDERED — That  where  an  agent  does  not  intend  to  take  the  benefit  of 
an  order  for  leave  to  put  in  any  paper  or  argument  before  the  Board,  nonice  be 
given  to  die  Board  to  that  efFeft  without  delay. 

ExtraSled  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secretary. 


Commissioners^ 


(     »3     ) 


COMMISSIONFRS*   OfFICE, 

Fhiladelphiat  gt/j  July^  1798. 


Pressnt,  as  befors. 

The  agent  for  the  United  States  having  reprefented  to  the  Board  the 
difficulties  he  labours  under  in  his  enquiries  for  want  of  a  competent  knowk  ^e  of 
the  places  of  refidence  of  the  debtors, 

ORDERED— That  the  claimants  fpecify  as  well  the  State  as  the  county, 
town  or  place  where  the  debtor  refided  at  the  time  the  debt  was  contracted,  and 
if  now  living,  their  prefent  places  of  refidence,  or  if  dead  the  names  and  places 
of  refidence  of  their  heirs  or  reprefentatives,  as  far  as  thefe  particulars  may  b^ 
known  to  the  faid  claimants  or  their  agents. 

ExtraSed/rom  the  proceedings  of  the  Board. 

G.  EVANS,  Secretary. 


Commissioners'  Office, 

Philadelphia,  l$tb  July y  I 'JC)?^ 

Present,  as  before. 

In  the  Cafe  of  Strachan  and  M*Kenzie. 

Resolved— -That  the  laws  of  the  State  of  South  Carolina  pafled  fub- 
fequent  to  the  peace,  and  known  under  the  denomination  of  the  injalment  laws, 
were  lawful  impediments  to  the  recovery  of  debts,  fecured  by  the  treaty  ot  peace, 
and  in  this  cafe  operated  as  fuch,  within  the  meaning  of  the  fixth  article  ot  ths. 
treaty  of  amity. 

EvitraBed  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secretary. 

Commissioner*' 


k'% 


(     H    ) 


Commissioners'  Office, 

Philadelphia t   1 6th  July^  1 798. 


f 


Present,  as  before. 


hi 


R 


L  VESOLVED—That  till  the  anfwer  to  a  claim  has  been  put  in  and  laid 
before  the  Board,  raifing  a  queftion  of  fact  between  the  parties,  no  application 
can  in  common  courfe,  or  without  very  fpecial  reafons  be  received  for  leave  to  ex- 
amine witnefTes  againft  fuch  claims. 

ORDERED— That  all  applications  out  of  the  ordinary  courie  of  proceeding 
before  the  Board,  fhall  ftate  fpecially  the  grounds  on  which  they  arc  made,  and 
meant  to  be  fupported ;  and  when  the  urgency  of  circumftances  renders  it  oecefTary 
to  make  any  fuch  application  between  the  fittings  of  the  Board,  that  a  copy  thereof 
be  forthv/ith  fent  to  each  commiffioncr  as  well  as  the  agent  for  the  adverfe  party. 

Ext ra£led  from  the  proceedings  of  the  Board, 

G.  EVANS,  SECRETAav. 


Commissioners'  Office, 

Philadelphia,  2 ^d  July,  1798. 


Present,  as  befors. 


O, 


•  f  ■  u^^  r^r"^^"  ^^^"*'  ^^"  '"  ^^^""y  cafe  make  their  enquiries,  and 
mform  themfelves  fully  as  to  all  the  material  fafts  as  foon  as  poffible,  after  the 
ca^  comes  before  the  Board,  and  that  every  application  for  leave  to  examine  wlt- 
ndles  at  a  diftance  from  where  the  Board  is  fitting  at  the  time,  rtiaJl  fet  forth  by 
fpectal  averments,  the  precife  fads  on  which  fuch  an  examination  is  propofed,  the 
names  and  places  of  refidence  of  the  witnefTes  to  be  adduced,  the  circumftlnces 
on  which  each  of  them  can  give  teftimony,  and  their  means  and  opportunities 

refpeftively, 


(     '5    ) 

rcfpeftively,  of  fpeaking  from  tlieir  knowledge;  on  which  application  (to  be  flylcd 
fpn'tal  cverments jfor  evtdence)  the  Board  trulting  thut  agents  will  not  make  aver- 
ments without  good  reafon  to  belitve  they  can  be  fubftantiated,  will  confider  the 
relevancy  of  fuch  averments,  and  either  order  fuch  examination  to  take  place 
before  themfelves,  or  authorize  the  fame  to  be  taken  at  a  diftancc,  on  fpccial  in- 
terrogatories to  be  fettled  by  the  Board,  and  under  fuch  diredions  as  the  cafe  may 
require. 

ExtraSled  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secretary. 


Commissioners'  Office, 

Philadelphia f  6th  Aug.  1 798. 


Present, 


Mr.  MACDONALD, 
Mr.  RICH, 
Mr.  FITZSIMMONS, 
Mr.  GUILLEMARD. 


In  the  Cafe  ^Cunningham  ^  Co. 


R] 


ESOLVED — That  in  the  State  (formerly  province)  of  Virginia,  the 
recovery  of  debts  due  to  Britilh  fubje(5ts  was  prevented  by  the  war,  and  the  opera- 
tion of  various  lawful  impediments  which  arofe  or  were  created  during  the  courfe 
of  the  war,  or  immediately  preceding  the  fame.  That  after  the  peace,  to  wit: 
On  the  22nd  day  of  June  1784,  and  before  the  expiration  of  certain  a(5ts  of  the 
State  pafled  during  the  war,  againft  the  recovery  of  Britilh  debts,  which  were  of 
limited  duration,  and  which  it  is  admitted  did  not  expire  till  the  month  of  July 
1784,  a  refoluticn  was  pafled  by  the  legiflature  in  the  general  alfembly  of  the  faid 

State 


p 


« 
<< 


(  i^  ) 

State  of  Virginia,  whereby  It  was  RESOLVED—"  That  Co  foon  as  tipafatlofi 
fliould  be  made  for  an  infraftion  of  the  treaty  of  peace  therein  charged  agaiirft 
Great  Britain,  or  congrefs  (hould  judge  it  indifpenfably  neceflary  ;  fuch  ads  of 
die  legiflature  paffed  during  the  war  as  inhibited  the  recovery  of  Britilh  debts, 
ought  >:o  be  repealed,  and  payment  thereof  made  in  fuch  time  and  manner  as 
^*  J/jouU  conjiji  ivith  the  exhaupd  fituatiofi  of  the  commonwealth."      That  by  the 
above  refolution  the  legillature  of  Virginia  did  in  fubftance  declare,  that  the  State 
was  not  bound  to  give  efFeft  to  the  treaty  of  peace;  that  laws  againfl:  the  recovery 
of  Britifh  debts  did  then  exift;  that  notwithftariding  the  4th  article  of  the  laid 
treaty  fuch  laws  (hould  continue  to  exid  in  their  utmoft  extent  till  certain  con- 
ditions were  fulfilled  ;  and  that  even  then,  fuch  laws  fliould  only  be  fo  far  repealed 
as  to  enable  Britifh  creditors  to  recover  payment  of  their  debts  in  fuch  manner  as 
might  be  found  moll  convenient  for  the  commonwealth.     That  on  the  1  2th  day 
of  December  1787,  an  aft  was  paffed  by  the  faid  general  aff  mbly  of  the  State, 
whereby  it  was  enaded,  "  That  fuch  of  the  ads  or  parts  of  the  ads  ot  the  legif- 
«  lature  of  the  commonwealth,  as  had  prevented  or  might  prevent  the  recovery 
•*  of  debts  due  to  Britidi  fubjeds  according  to  the  true  intent  and  meaning  of  the 
treaty  of  peace  fliould  be   repealed."     But  with  an  exprefs  provifo  that  fuch 
repeal  fliould  be  fufpended  "  until  the  governor  with  the  advice  of  council  .'hould 
*«  by  his  proclamation  notify  to  the  State,  that  Great  Britain  had  delivered  up  to 
«*  the  United  States  the  pofts  therein  occupied  by  Britifli  troops,  and  the  negroes 
««  alledged  to  have -been  taken  away  contrary  to  the  treaty,  or  had  made  fuch 
*'  compenfation    for  them  as    fliould  be    fatisfadory  to  congrefs."      That   al- 
though  Great  Britain  has  delivered  up  the  faid  pofts  to  the  United  States,  agree- 
ably to  and  in  compliance  with  the  fecond  article  of  the  treaty  of  amity,  the  faid 
negroes  have  not  been  delivered  up  nor  compenfation  made  as  prefcribed  by  the 
faid  aft  of  the  State  of  Virginia,  and  the  faid  treaty  of  aniity  contains  no  ftipulation 
for  that  purpofe.     That  as  the  exiftence  of  lawful  impediments  in  the  State  of 
Virginia,  to  the  recovery  of  Britifli  debts  nowithftanding  the  treaty  of  peace,  was 
thu?  repeatedly  declared  and  their  operation  recognized  and  enjoined  by  the  high- 
eft  authority  in  the  State,  fo  it  appears  from  the  records  of  adjudged  cafes,  fubfe- 
nuent  to  the  adoption  of  the  prefent  conftitution  of  the  United  .states  which  have 
been  laid  before  the  Board,  with  a  reference  to  known  and  general  pradice,  that 
■udgments  for  the  defendants  were  accordingly  given  in  the  courts  of  law,  on  the 
pleas  of  Britijh  debt  and  the  fiatute  of  limitations.     And  that  it  is  ftated  by  the 
prefent  Chancellor  of  Virginia  "  diftmguilhed  (as  in  the  anfwer  for  the  United 
'«  States  he  is  defcribed  to  be)  for  his  probity,  learning  and  experience,"  and 
whofe  reports,  containing  the  paffage  now  to  be  recited  have  been  produced  and 
referred  to  by  the  agent  for  the  United  States,  "  Than  fome  months  before"  the 
,^d  day   of  May  1793,  the   dodrine  "  That  an  American  citizen  might  honejlly 
"  as  well  as  proftdhly  withhold  money  which  he  owed  to  a  Britifh  fuljea,"  was  re- 
ceived in  a  court  of  juftice  in  Virginia,  with  "  conviaion"  and  applaufe.     That 
tlie  adjudged  cafes  of  which  the  records  have  been  laid  before  the  Board,  m  evi- 
dence of  the  faid  reference  to  the  general  pradice  of  the  courts  are  the  following, 

•  to 


(( 


(     ^7     ) 

to  wit :  A  judgment  of  the  court  of  qu.^.tcr  fefiions  lu-Ul  for  LSncaflcr  county  in 

t|ic  faid  State  of  Virginia,  on  the  lyth  day  of  March  1788,  in  an  adion  in  wliicli 

Warnvicli  adminilirator  was  plaictiff  and  Gajlins  defentlnnt,  which  judgment  is  in 

thcfe  words,  "  On  this  day  came  the  parties  by  their  attornies,  and  upon  hcaiiii"  the 

'*  arguments  that  were  offered  by  the  fiud  attornies,  and  all  matters  of  law  ariiing 

"  thereupon  the  court  are  of  opinion  that  this  fu'it  he  difintffttly   it  appenrhin  to  the 

court  to  be  a  Br'ttijli  debt.     A  judgment  of  the  county  court  of  Prince  George  on 

tlie  12th  day  of  Auguft   1791,  in  an  acftion  in   whicli  Gibfon  Donnaldlbn  ami 

.Hamilton  were  plaintiffs  and   Banniflers  executors  were  defendants  ;  and  which 

judgment  is  in  thefe  words,  "  And  now  at  this  day  came  the  parties  by  their  at- 

*'  tornies,   and  //  appearing  to  the  court  that  the  plaintiffs  or  fome  of  them  are  Brlhjh 

.*•  Juhjcds  this  caufe  is  ordered  to  be  difmlffed.'^     A  judgment  of  the  circuit  court  of 

the  United  States  for  the  mildle  circuit  in  the  Virginia  diftriiSt,  held  at  Richmond, 

in  the  faid  difbid  on  the  li:  day  of  June  1797,   in  an  adioD  for  a  debt  due  on  the 

2  2d  day  of  May  1775,  brought  into  court  en  the  22d  day  of  November  1793,   in 

which  Hcuderfon' s  furviving  partners  of  GA//f/"c/\'/ av.v/  Htnderfon  were  pLiintiffj  and 

Btnilury's  executors  were  defendants,   and  to  wliich  the  defendan.  >  pleaded  Ji>y/ 

thegeneral  ifliic,  and  Jlroiid/y  the  iratute  of  limitations,   to  which  fecond  plea  the 

plaintiffs  replied  as  follows,  to  wit:   "  And  the  plaintiffs  by  their  attorney  fay  as  t(^ 

"  the  fecond   plea  by  the  defendants  aforefiid  pleaded  that  they  ought  not  to  be 

"  precluded  from   having  and  maintaining  their  faid  action  againfl  the  defendant, 

"  becaufe  theyfiiy,  that  from  and  after  the  4th  day  of  July  in  the  year  1776,  un- 

"  til  the  jd  day  of  September  178;,  there  was   open   war  between  die  United 

•*   States  of  America,  whereof  the  defendant  was  a  citizen  and  the  king  of  Great 

"  Britain  to  whom  the  plaint iiTs  were  fubjcifts  ;  and  that  the  various  laws  of  the 

""  State  of  Virginia  prohibited   the  recovery  of  the  demand  in   tlic  declaration 

'*  mentioned."      But  the  faid  fecond  pica  was  adjudged  to  be  good.     A  judgment 

of  the  county  court  of  Prince  Willi'sm  county  on  the  8th  day  of  Augui'l  1797,  in 

an  adion  brought  into  court  on  the  4th  day  of  Augufl  1  795,  for  a  debt  due  on  the 

2d  day  of  December  1775,  in  which  WiUiam  Cunningham  and  Co.  were  plaintitfs 

and  Pr/jr;'/ adminiftratrix  was  defendant,  and  in  which  there  v/as  a  verdict  for  the 

defendant  on  the  direfrion  of  the  court  that  the  demand  was  barred  by  the  flatute 

of  limitations.      And  a  judgment  of  the  diflricT:  court  ccmpofcd  of  the  toimties  of 

Prince  George,  SufTex,   Dinv/iddie,   Hallaway  and  Amelia,   on  the  i6th  day  of 

April  lail:  in  an  adfion  for  a  debt  due  on  the  i6th  day  of  January  1776,   brought 

into  court  on  the  27th  day  of  April  1796  in  which  IVillunn  Cunningham  and  Peter 

Murdoch  defcribed  as  fubjedb  of  the  king  of  Great  Britain  were  plaintiffs,  and 

Sturdii-ant^  executor  was  defendant,   anci  in  which  the  ftatute  of  limitations  \vu3 

pleaded,  the  4th  article  of  the  treaty  of  peace  flatred  in  rcpl}',  and  on  demurrer  the 

■plea  adjudged  to  lie  good.     To  ail   which  eridence  of  the  cxiflence  and   adual 

operation  of  lawful  impediments  to  the  recovery  of  Britifh  debts,  nothing  has  been 

oppofed  but  an  averment  that  the  Icgiflature  of  the  State  of  Virginia  v/ere  ignorant 

of  their  own  laws  ;  and  an  argument  to  prove  that  according  to  the  theory  of  the 

kw,  and  conffitution  of  the  United  States,  fuch  legiflaiive  avfls  ought  not  to  have 

j)afred,  nor  fi-ich  judicial  decifions  to  have  been  given, 

C  RESOLVED 


r  i8  ) 

RESOLVED — Thatfo  far  as  the  full  recovery  of  the  debts  in  this  cafe  claim- 
ed, has,  during  the  operation  of  the  faid  lawful  impediments  been  delayed,  and 
the  value  and  lecurity  thereof  impaired  and  leffened,  or  totally  loft,  by  lapfe  of 
time,  the  lofsof  legal  evidence,  infolvency  of  debtorsor  otherwife  ;  fuch  delay  of  re- 
covery and  diminution,  or  lofs  of  value  and  fecurity  are  to  be  afcribed  to  fuch 
operation  of  lawful  impediments ;  unlefs  it  be  (hewn  within  the  provifion  of  the 
treaty  of  amity,  that  fuch  delay  of  recovery  and  diminution  or  lofs  of  value  and 
fecurity  were  occafioned  by  other  caufes  which  would  equally  have  fo  operated  if 
the  faid  lawful  impediments  had  not  cxifted,  or  arofe  from  the  m^nifelt  deJay  or 
negligence  or  wilful  admiffion  of  the  claimant. 

RESOLVED — That  no  part  of  the  debts  in  queftion  which  are  clafTed 
or  defcribed  as  "  doubtful"  in  the  lifts  referred  to  in  the  memorial,  and  which  are 
ftated  to  have  been  fo  defcribed  in  the  year  1775,  and  not  alledged  to  have  fincc 
become  good,  can  be  the  fubjedt  of  claim  before  this  Board. 

ExtraBed  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secretary. 


Commissioners'  Office, 

Philadelphia,  6th  Augujl,  1798. 

Present, 

Mr.  MACDONALD, 
Mr.  RICH, 
Mr.  FITZSIMONS, 
Mr.  GUILLEMARD. 

In  the  Cafe  ofD.  Dulany. 

The  Board  refumed  the  confideration  of  the  refolution  which  was  propofed  in  this 
cafe  on  the  1 3th  day  of  June  laft,  and  had  been  the  fubjedl  of  frequent  confe- 
rence and  deliberation ;  and  the  fame  was  pafled  as  follows : 


HE  Board  having  confidered  the  pleadings  in  this  cafe,  and  particularly 
the  additional  argument  on  the  part  of  the  United  States  in  confequence  of  the 

order 


(     »9     ) 

order  dated  the  7th  day  of  May  lad,  fuggefting  to  their  agent  certain  points  anrf 
pinciples  for  further  difcuffion,  to  which  order  reference  is  now  had. 

lESOLVED— That  the  claimant,  Daniel  Dulany,  a  BritiOi  fuhjea,  became 
immediately  on  the  death  of  the  teftatrix  Ann  Tafker,  as  refiduary  legatee  under  her 
will,  entitled  to,  and  ci editor  in  equity,  in  all  debts  due  to  the  faid  teftatrix  at  the 
time  of  her  death — that  depreciated  paper  money  was  at  different  times  during  the 
war  tendered  to  the  executor  under  the  will  in  payment  of  certain  debts  fo  due  ; 
which  depreciated  paper  was  received  by  the  faid  executor  in  chcdienct  to  an  a^fl  ot 
the  general  aflembly  of  the  State  of  Maryland,  parted  in  April  1777,  whereby  it  was 
enaded  that  the  paper  r.oney  therein  mentioned  fliould  be  ''  received  in  payment 
«*  and  difcharge  of  all  manner  of  debts  ;"  and  that  if  a  creditor  refufed  to  receive 
fuch  paper  money  when  tendered  in  payment  and  difcharge  of  his  debt,  the  whole 
debt  and  demand  ibould  be  ''for  cvir  'exlhigui/hu/,"  the  bond  or  other  voucher  of 
the  debt  delivered  up,  or  a  difcharge  given  to  the  debtor  who  might  fue  the  creditor 
for  damages  to  the  amount  of  the  debt  with  colh  of  fuit,  if  on  refufing  the  tender 
he  alfo  refufed  on  demand  to  deliver  up  the  bond  or  other  voucher  of  debt,  or  to 
give  fuch  difcharge  to  the  debtor — That  the  aft  of  an  individual  in  obedience  to  a 
peremptory  law  is  the  ad  of  the  law  itfelf.  That  in  every  fuch  caie  of  tender 
the  extindion  of  the  debt  at  law  was  by  adt  and  operation  of  law,  which  it  was  not 
in  the  power  of  the  creditor  either  to  promote  or  prevent ;  for  whether  he  rccciv-J 
the  tender  and  obeyed  the  law,  or  refufed  and  difobeyed,  the  debt  was  thereby 
immediately  extinguiflied.  That  the  Board  are  bound  to  av/ard  relief  wherever 
the  right  is  good  in  julHce,,  and  the  remedy  without  fault  in  the  creditor  is  gone 
at  law.  That  the  exiflence  in  this  cafe  of  the  creditor's  rigb.t  injulHce  to  the  ex- 
tent of  all  that  has  been  withheld  of  a  fair  debt,  has  not  been  made  the  liibjca  of 
difpute  ;  but  his  remedy  at  lav/  has  been  loft  by  his  obedience  to  law  ;  and  there- 
fore it  is  maintained  that  the  nation  is  not  bound  to  relieve.  That  it  is  incumbent 
on  every  individual,  whether  alien  or  citizen  to  yield  obedience  to  the  authority 
under  which  he  lives  at  the  time,  fo  far  as  that  obedience  is  not  directly  inconfilt- 
ent  with  prior  duties,  nor  is  it  a  doctrine  to  he  admitted  in  any  cafe  that  a  nation 
has  a  right  to  complain  of  an  individual  for  having  obeyed  their  laws;  or  under 
an  agreement  to  allow  compenfation  for  certain  loflcs  arillng  from  their  operation 
to  retufe  fuch  compenfation  becaufe  thofe  laws  have  fo  operated  and  were  obeyed. 
That  difobedience  to  the  law  could  in  this  cafe  have  proceeded  from  no  rational 
inducement;  for  without  enquiring  v/hether  as  is  alledgcd,  the  courts  of  juflice 
did  afterwards  and  fubfequently  to^the  peace  in  many  inftances  of  tender  and  rc- 
fufal,  defeat  the  operation  of  the  above  lav/  by  taking  advant.ige  of  defers  in 
form,  fo  as  that  the  creditor  "  might  have  recovered  (as  it  is  fiid  on  the  part  cf 
«  the  United  States)  the  whole  fioni  the  debtor,  the  principal  as  well  as  the  in- 
"  tcreft  to  which  judice  would  have  entitled  him"  it  is  fuftitient  that  no  mcti'e 
could  arife  from  events  which  had  not  then  happened  ;  whdc  refuHil  of  tender 
in  difobedience  of  the  law,  and  in  circumfiances  which  gave  no  preiage  o{  flivcr 
in  fuch  cafes,  and  when  '*  the  dodirine  of  tender  it  is  faid  was  iitue  underftood/' 
would  have  deprived  the  creditor  of  an  i.mmtdiate  faiisfadtion,  in  part  fubjedl-d 

hina 


(       20       ) 

him  to  a  judgnifni.  and  execution  for  damages  to  the  extent  of  the  whole  dcbi, 
with  cods  of  fuit,  and  expofed  him  to  all  the  hazard  of  perfonal  inconvenience, 
•which  in  fuch  times  and  circamftanccs  is  neceflarily  incident  to  the  open  and  avowed 
breach  and  contempt  of  pofitive  lavv.  That  therefore  the  amount  of  what  remains 
unpaid  of  the  full  value  in  fterling  money  of  the  debts  in  queftion,  as  (ecured  againft 
the  operation  of  lawful  impcc'lments  by  the  4th  article  of  the  treaty  of  peace,  is  a 
lofs  which  arofe  from  the  ad  andoperation  of  law,  ftill  impeding  and  preventing  the 
attainment  of  remedy  in  the  ordinary  com  fo  of  juftice,  and  as  fuch  the  proper  fub- 
jeft  for  claimfor  corapenfation  under  the  6th  article  of  the  treaty  of  amity. 

Exfrnifedfrom  the  prorecit'mgs  of  the  Board. 

G.  EVANS,  SscRETARr. 


Commissioners'  OrriCE, 

Philadelphia,  6th  wlug,  1798. 


Present,  as  before. 


In  the  Cafe  of  D.  Dulan 


R) 


ESOLVED — That  In  order  to  prevent  as  much  as  poflible  the  incon- 
ven'encies  which  muft  arife  from  erroneous  impreffions  of  the  principles  entertained 
or  adopted  by  the  Board  in  the  interpretation  of  the  treaties,  more  efpecially  when 
fuch  erroneous  impreffious  are  produced  by  the  publication  of  printed  arguments, 
it  becomes  them  to  declare  that  the  firft  point  fuggefted  for  further  argument  in 
this  cafe  by  the  order  of  the  7th  day  of  May  laft,  referred  to  in  the  above  refolu- 
tion,  and  which  point  is  in  thele  words,  "  Is  it  not  therefore  clearly  underftood  by 
**  both  parties,  as  a  principle,  that  a  difcharge  or  extin£lion  of  the  debt  a:  laiv  before 
"  the  treaty  is  not  of  itfelf  a  bar  to  the  remedy  thereby  provided;  but  that  it  mufl  alfo 
appear  to  have  been  fuch  an  extindlion  and  difcharge  as  proceeded  from  the/r^e 
concurrence  and  •voluntary  aft  of  the  creditor,  and  not  from  the  effeft  and  ope- 
ration of  law  J  fuch  operation  of  Uw,  in  bar  of  all  legal  Mmedy,  being  on   the 

"  contrary 


(( 


1'^ 


{       21       ) 

-^  contvaKielicd  on  as  thcm;iin  ro-indation  of  a  right  to  claim  under  the  treaty  f'| 
i.  altoeciluT  inifrcprell-ntcd  i'i  the  following  anfwcr  laid  before  th.'iJoaul.ar.u 
printed  on  l!r;  part  ot  the    United  Stales.     "  B  .t  the  a^cnt  for  the  United  .Stut.'. 
«•-  djes  not  ."imit  that  it  \va:-  ever  undcrilood  hy  him  or  by  the  Uiiilcd  htatcs  as  a 
«•■  ccncral  ^  i.:]rcipletbat  tL- dillkirge  or  extmmon  ofthcMt  at  laiv  kfor:  the  p-ac 
•«  Ijas  a  le^a!  n.itictiment  nvhkh  th,  treaty  of  pcau  removed;  and  confequcntly  ih:U 
«  every  adjullment   and  payment  between  the  debtor  and  creditor,   before  tha^ 
"  period    vaj  '%iblc  to  be  re-examined  and  unfettled.      On  th^  contrary,  the  agir! 
'♦  denies  fuc'h  a  frhwiple,  and  contends  that  the  Board  has  no  power  to  make  c  ;ia- 
«    rninaion   hno   any  matter  that  has   been  fettled  by    the  debtor   and     cr:d.tcr 
*'  r.c-ordina  to  the  laws  of  the  land."     That  the  foHowmj;  words  m  the  above 
p-arape,  vi/!  «  principle  that  the  difcharge  or  extinftion  of  the  debt  at  law  bctorc 
''  th  peace  nuas  a  le^,al  mpediment  'U'hich  the  treaty  of  peace  removed,     are  punted  m 
the  faid  anfwcr  with  full   marks  of  quotation  as  if  not  only  the  lubflanec  but  the 
very  terms  made  ufe  of  in  the  order  had  been  therein  faiiutully  j-iyen  ;  wherear 
ev-^'rv  word  of  die  latter  part  of  the  fentcnce  is  a  mifquotation,   tendmg  to  luppon 
the  conclufion  Imputed  to  the  Board,  but  totally  different  from  and  in  part  prec.fcly 
th''  rcverfe  of  the  plain  propofition   they  cxprcff^d.     lor  the  Board  have  ncvu 
fu^gelkd  or  given  any  re.afon  to  afcribc  to  them  the  opinion  eitlr.r  that  the  validity 
of ''  payments  accepted  by  the  creditors  whether  in  p^i^^r  noricy,  m  Lind.,  m 
»  houfes,  in  public  fecurities,  or  in  any  otlier  commochty  to  whtch  both  partie.  the 
u  creditor  and  debtor  had  agreed  is  queftionable,"  as  ftated  m  the  fir  ft  paragraph  oi 
that  printed  paper.     Or  "  that  every  adjullment  and  payment  between  the  debtor 
«  and  creditor  before  the  peace  is  liable  to  be  re-examined  and  unfettled.     as 
ftated  in  the  paragraph  before  recited.     Nor  have  any  fuch  nropofitions  ever  b:er. 
maintained  before  them. 

^-  Ext  railed  from  the  proceedings  of  the  Board. 

G.  EVANS,  SecrbtAry. 


COMM'iSIONF.R' 


(      2*      ) 


Commissioners'  Officb, 
Phikilelfihiay  Sih  yiu^uji,  1 798* 


Present, 


Mr.  MACDONALD, 
Mr.  FITZSIMONS, 
Mr.  GTTILLEMARD. 


In  the  Cafe  of  DAmzL  DvLANY. 

Mr.  Fitzamons  read  in  his  place  his  proteft  againfl  the  proceedings  in  this  cafe  at 

the  laft  meeting,  as  follows,  viz  2 — 

V^N  Monday  the  6th  ioftant  the  Board  propofing  to  take  up  a  rtfolution 
upon  the  claim  of  Daniel  Dulany,  whereby  the  right  of  the  claimant  to  compen- 
fation  for  depreciation  on  payments  made  to  his  reprefentative  during  the  war,  is 
recognized,  notwithftanding  the  debts  for  which  fiich  payments  were  made  were  at 
the  time  finally  (ettled  and  the  evidence  thereof  given  up  or  cancelled. 

It  was  objedcd  to  on  my  part  that  fuch  a  claim  ought  not  to  be  entertained  by 
the  Board,  becaufc  neither  the  words  nor  the  fpii  it  of  the  treaty  would  warrant  the 
conflruflion,  tha-.  payments  thus  made  could  now  be  fet  afide,  or  be  confidered  as 
legal  impediments.  That  rather  than  give  countenance  to  a  rcfolution  which  (in 
my  opinion)  was  fo  manifeftly  unjuft,  I  (hould  withdr.v  from  the  Board  tc  pre- 
vent its  adoption  ;  (a  determination  I  had  explicitly  exprcfTc'.;  when  the  fame 
lefolution  was  before  under  confideration)  being  aflce'  1  owevet  .0  hear  he  rcfolu- 
tion read  and  without  the  fmallefl  expedation  that  after  my  declaration  the  other 
members  would  confider  roe  as  prefent  to  this  purpofe  I  remained  in  my  place,  after 
the  fecretary  had  finiflied  the  reading  (and  fome  obfervations  had  been  made  by  a 
member  of  the  Board  purporting  that  I  had  not  a  right  to  withdraw)  I  heard  with 
infinite  concern  an  order  given  to  him,  to  enter  it  as  agreed  to ;  and  to  furnifli 
copies  i.  I    gents  as  in  other  cafes. 

Under  lucfe  circumftances  it  becomes  my  duty  to  protefl:  againft  the  validity  of 
the  faid  refolution  which  I  do  *iot  confider  as  having  pafied  the  Bonn.',  and  I 
requeft  that  the  agent  for  the  United  States  and  the  agent  for  claimants  be  fur- 
nifhed  with  a  copy  of  this  ftatcment  and  declaration. 


Jugujl  8,  1798. 


(Signed)  THOMAS  FITZSIMONS. 


(     ^3     ) 

The  abov  hcing  read,  Mr.  Guillcrnard  and  Mr.  Macdonald  rcprcfentcd,  that 
ifterthe  re -din'  of  the  rcfolutions,  and  after  obfervattons  had  been  made  as  above, 
the  quelHon  was  diainaly  put  and  Mr.  Macdonald.  Mr.  Rich  and  f  ^.  Gu.llc 
mardcave  their  affcnt,  the  one  afte,  the  other  to  the  paHmg  ot  the  refolutions,  on 
which  the  fecretary  was  defired  to  enter  them  as  pafftd,  Mr.  Fitzlimons  (hi  con- 
tinuing in  his  place,  and  that  the  ^vhole  bufmefs  was  done  deliberately,  it  having 
been  fettled  on  Wednefday  the  firft  day  of  Augull,  that  it  ^ould  be  taken  upon 
the  Monday  following. 

ExtraBcd  from  the  proceedings  of  the  BoarOt 

G.  EVANS,  Secretary. 


Commissioners'  Office, 

Philadelphia,  St h  Jug.  1 798. 


Present, 


Mr.  MACDONALD, 
Mr.  FITZSIMONS, 
Mr.  GUILLEMARD. 


In  the  Cafe  0/ Cv^mi^GiiAU  and  Co.' 

Mr.  FitzfimoDS  read  in  his  place  his  difTent  from  the  refolutions  agreed  to  in  this 
cafe  at  tlie  laft  meeting,  as  follows,  viz  :— 

The  refolutions  pafled  by  the  Board  in  the  cafe  of  Cunningham  and  Co. 
containing  as  I  believe,  principles  inconfiftenl  with  the  true  intent  and  meaning  ot 
the  treaty  under  which  we  a^-I  defire  to  enter  my  diiTeat  from  them  on  the 

following  grounds :  . 

lit* 


(        24        ) 

111.  Ee-.uulc  liie  proofs  before  the  lio.ird  arc  not  fufficient  to  v/arrant  the  con- 
duUun,  tl..it  lawful  impediments  to  th-;  recovery  of  Britifl\  debts  cxilkd  generally 
71  Virgini.i. 

The  records  of  judgments  in  two  rafes  in  county  court?,  and  the  31^:5  and  refo- 
liitious  of  the  legiflatiit-e,  are  cited,  with  a  refeienceto  the  general  pniaice  of  the 
courts  ;  but  it  is  alledged  on  the  part  of  the  United  States,  that_ judgments  in 
numerous  inilances  were  obtained  in  the  courts  of  Virginia  by  BritiHi  creditors, 
that  no  appeal  was'ever  carried  up  fiom  the  lower  to  the  higher  courts  where  the 
ji!c!",ments  might  have  been  corrected  ;  and  that  it  was  incumbent  upon  the  par- 
"tics'to  have  leforted  to  thefe  tribunals  before  a  principle  f&  important  fliould  be. 
admitted  to  the  extent  laid  down  in  the  refolution  more  particularly  as  it  has 
always  been  held  that  the  treaty  of  17S3  controuled  the  laws  of  the  particular 
St;itcs. 

2d.  Becaufe  judgments  given  upon  the  flatute  of  limitation  are  cited  v,i;houtany 
/^jecification  of  t'le'^circumlhinces  upon  which  they  were  given,  and  inferences  ara. 
<lrav.-n  from  thofe  judgments,  that  they  were  legal  impediments,  no  difcuifion  or 
examinati-n  of  the  grounds  or  principles  was  ever  had  before  the  Board  v;pon  that 
fubjea;  nor  are  the  records  fufticient  to  wanant  the  conclufion  that  they  are  legal 
impediments. 

3d.  Becaufe  a  principle  is  laid  do.vn  which  throws  the  whole  burden  of  proof 
uvon  the  United  States  in  every  cafe  where  legal  impediments  exilted,  contrary 
as  is  believed,  to  tlie  clear  principles  of  law  and  equity.  By  this  decifion  the 
creditor  is  excufjd  from  proving  that  his  debtor  v/as  folvent  at  the  expiration  of  the 
war,  or  that  he  has  ufed  due  diligence  for  the  recovery  of  his  debt.  To  avoid  the 
payment  tlic  United  States  mu(f  prove  the  contrary  in  both  infhnccs.  The  injuf- 
tice  that  may  be  done  to  the  United  States  by  the  application  of  this  principle,  is 
too  obvious  to  require  elucidation  Reafon  and  juftice  would  require,  that  before 
ihe  United  States  could  be  called  upon  to  pay  the  Britifh  creditor,  he  ought  to 
prove  that  he  loft  his  debt  by  reafon  of  the  impediment  which  prevented  his  •  :foi  t- 
insT  to  the  courts  for  its  recovery,  but  under  this  principle  it  is  prefumed  not  only 
that  th:  debtor  was  folvent  during  the  operation  of  the  lawful  imp(idiments,  but  that 
the  creditor  took  all  proper  methods  within  the  meaning  of  the  treaty  to  recover 
payment  from  him. 

The  prcfuniption  that  the  debtor  was  fohent  at  the  time  the  treacy  was  concluded 
is  the  more  inadmiffit)le,  when  the  circumfknces  of  the  coantry  at  that  period  of 
time  is  taken  into  view  ;  it  is  a  fad  too  notorious  to  be  denied,  that  by  far  the 
greatfcft  part  of  the  perfonal  property  of  the  citizens  was  wafted  and  loft  during  the 
war,  and  that  for  want  of  markets  for  the  produces  of  the  cotmtry,  the  prices 
wcic  fo  low  for  fome  years  after,  as  to  afford  no  means  of  paying  old  debts  ;  the 
))refumption  therct^re  is  totally  inadmiilible  on  this  ground,  and  the  application  _ot 
llie  rule  if  adhered  to,  will  prove  beyond  contradiaion  the  injuftrceof  the  prrrt- 

'^^'''  By 


(    25    ] 

*  "By  the  treaty  of  amity  the  United  States  have  only  promifed  the  creditors  to 
pay  what  they  have  loft  by  the  operation  of  legal  impediments  to  the  recovery  of 
their  debts^not  all  that  they  fhould  demand  on  that  account,  except  they  coulcT 
prove  that  the  demand  was  juft. 

The  dccifion  of  a  queftion  of  this  importance,  at  a  time  when  only  o  e  of  the 
<;ommiflioners  appointed  by  the  United  States  was  prefcnt,  will  certainly  not  con- 
■tribute  to  render  it  more  acceptable. 

ExtraBed  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secretary. 


In  the  Cafe  of  D.  Dulany. 


Explanatory  obfervations  on  behalf  of  the  United  States. 


In  anfw&r  to  the  third  point  fuggefted  by  the  Board,  the  agent  for  the 
United  States  contended,  that  by  refufing  the  tender,  the  creditor  would  have  had 
ifin  his  power  under  the  laws  of  the  country  and  the  treaty  of  peace,  to  have  reco- 
vered afterwards  the  full  value  thereof  in  fterlipg  money  from  the  debtor.  In  order 
to  have  a  proper  view  of  this  argument,  and  before  a  final  decifion  is  msMie,  the  agent 
Infifts,  that  proof  be  produced  of  the  emiflion  of  the  bills  of  credit  which  were 
tendered  and  received.  None  but  bills  emitted  by  congrefs  or  by  tlie  State  of 
Maryland  prior  to  the  i8th  April  1777.  were  ever  a  legal  tender  in  that  State. 
Were  the  bills  of  either  defcription  which  were  tendered  and  received  ?  If  they 
•Were  not,  the  ad  of  1777  did  not  embrace  them,  and  the  operation  of  that  law  on 
this  cafe  is  wholly  denied.  The  payment  cannot  be  faid  to  have  been  the  effeft  of 
that  law  and  to  have  derived  any  validity  therefrom. 

It  is  incumbent  on  the  claimant  to  produce  this  proof,  and  the  agent  for  the 
United  States  will  prodace  proof  that  this  is  the  eftablifhed  intei-pretation  in  the 
State  of  Maryland  of  that  aft.     The  agent  for  the  United  States  has  thought  it 


(     26    ) 

his  duty  thus  exprefsly  to  urge  this  point  leafl  It  ftould  be  fuppofed  not  to  have 
been  implied  io  his  former  remarks, 

JOHN  READ,  JuN. 

jigenl  general  for  thti  United  States^ 

loth  jtiuguftt  1798. 

The  foregoing  explanatory  obfervations  were  tendered  by  me  to  the  Board  on  the 
loth  Auguft  1798,  which  they  refufed  to  accept,  affigning  as  a  reafon  for  tht, 
fajme,  that  the  pleadings  in  this  cafe  were  clofed. 

JOHN  READ,  JuN. 

Agent  for  the  United  States, 


Commissioners'  Office, 

Philadelphia,  $th  Dec.   1798. 


Present^ 


Ml-.  MACDONALD, 
Mr.  RICH, 
Mr.  FITZSIMONS, 
Mr.  SITGREAVES, 
Mr.  GUILLEMARD. 


V_/RDERED — That  the  general  agent  for  claimants  do  v/ithout  delay  lay 
before  the  Board  the  feveral  titles  of  claimants,  ftating  themfelves  to  be  furviving 
partners,  adminiftrators,  executors  or  truflces  ;  and  alfo  the  powers  of  attorney,  or 
other  authorities,  by  virtue  of  which  claims  have  been  prefented. 

JSxtraHed  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secretary. 

Office 


(     27     > 

Office  of  the  Commissioners, 
VnJer  the  Sixth  Article  of  the  Treaty  of  Amity,  &c.  with  Great  Britain. 

Philadclphiay  iSih  Dec,  1 798. 


■ 

: 


Present, 

Mr.  MACDONaLD, 
Mr.  RICH, 
Mr.  FITZSIMONS, 
Mr.  SITGREAVES, 
•  Mr.  GUILLEMARD. 


In  ike  Cafe  o/"  Cunningham  &  Co; 


The  refekitlon  moved  by  a  member  of  the  Board  on  the  13d  day  oi 
OAober  lalt,  on  the  queftion  oiinterej  during  the  luar,  which,  with  other  genera! 
queflions  of  interpretation,  was  in  the  anfwer  to  the  United  States,  fpeciaUy  railed 
and  fubmitted,  on  full  argument,  for  the  determination  of  the  Board  m  this  parti- 
cular cafe,  as  involving  "  many  important  principles  neceflary  to  be  decided," 
f  which  anfwer  it  appears  from  the  letter  annexed  to,  and  printed  therewith,  wai 
drawn  up  by  the  attorney  general  of  the  United"  States,  as  a  leading  argument  to 
be  referred  to  in  fimilar  cafes,  and  to  which  reference  has  accordingly  been  made) 
having  been  again  moved,  the  matter  was  this  day  fully  difcuffed,  and  the  refolution 
paffed  as  follows  :— 

The  Board  having  confidered  the  argument  of-both  parties  on  t]\e  claim  of  in* 
tereft  during  the  war,  which  is  oppofed  on  the  following  general  grounds  and 
principles,  as  ftated  in  the  anfwer  of  the  United  States,  viz. 

The  rules  of  conftruaion  eftabliflied  by  the  law  of  nations  for  the  interpretation 
of  "  obfcure  or  ambiguous  pa<5ts  :"— 

The  meaning  of  the  word  "  debts'*  in  t\iQ  fourth  article  of  the  treaty  of  peace  as 
not  comprehending  intereft,  becaufe  intereft  is  recoverable  at  law  in  the  technical 
form  of  fl'flmrt^^j,  for  the  detention  of  the  debt;  "being  what  is  given  more  than 
«  the  principal,  that  the  creditor  may  not  be  a  lofer :" — 

The 


(       28       ) 

The  inference  to  Ic  drawn  from  the  demand  of  a  dcduflion  of  intcreft  duilng 
the  war,  which  had  been  made  on  the  part  of  the  United  States  in  the  caurfe  of  the 
negociation  previous  to  the  formation  of  the  faid  article,  and  from  a  converfation 
luhfequcDt  to, the  .treaty,  viz.  in.  the  year  1786,  between  the  Britifli  fecretary-of 
ihte  for  foreign  affairs,  and  the  American  miniller  at  London  ;  in  which  the  latter 
iungefted  "  the  policy  of  giving  up  the  intered  during  the  war,  and  of  agreeing  to 
""a  plan  of  payment  by  initalraents ;"  and  rfie  former,  after  "  fome  flight ,ex- 
'»  preffions  concerning-thc  intereft,  wifhed  that  the  courts  were  oi>ened  for  lecover- 

iii  >  tiie  principal,"  and  obfeived  »♦  that  the  int-reft  might  be  left  for  an  after 


conlidcration 


•  "-^ 


The  nature  and  caufes  of  the  war  ;  in  the  courfe  of  which  "  the  produ^s  of  the 
'*  land  were  indifpenfably  neceflary  for  defence  againft  that  which,  on  the  fide  of 
"  the  Americans,  was  a  war  for  life,  liberty  and  property:    A  war  pro  aris  et    . 
"  focis',"    attended  with  circumftances  of  fuch  defolation   (as  defcribed  in  the    , 
*'  printed  anfwer)  that  after  the  application  of  what  was  thus  neceflary  for  defence,    ., 
'•'  there  was  nothing  left  to  an  individual  for  paying  intereil  on  his  debt  :"— 


"  The  interdiaion  of  commerce  to  the  United  States  by  the  Britifh  parliament," 
and  ftoppage  of  "  intercourfe  anJ  accefs  between  the  American  debtors  and  Britifii 
"  creditors,"  by  which  "  the  detention  of  the  debt  during  tlie  war  was  unavoid- 
«  able:"— 

The  departure  of  creditors,  and  their  faiflors,  from  the  State,  fo  that  no  perfori 
remained  in  the  country  to  receive  payment  of  the  debt : — 

The  analcgy  between  the  prefent  cafe,  and  tliat  quoted  from  Vinei's  abridgment, 
in  w^hich  it  is  dated,  "  that  where  by  a  general  and  national  calamity,  nothing  is 
«  made  out  of  lands  which  are  afligned  for  the  payment  of  interelt,.it  ought  not, 
•'■  to  run  on  during  the  time  of  fuch  calamity  :" — 

The  authority  of  writers  on  the  Uw  of  nations,  whofupportthe  general  pofitlon,' 
(which  as  fuch  has  been  dated,  and  not  difpvited  on  the  part  of  the  United  States) 
viz.  "  that  debts  due  to  private  perfons  before  a  war,  fliall  be  paid  after  the  war  \, 
"  and  with  intereit  during  the  war,  if  fuch  was  the  contract,  either  tacit  or  ex- 
♦*  prefs  :'  — But  who  alfo  lay  it  down,  that  "  if  nothing  elfe  be  agreed  upon,  yet 
'*  this  is  to  be  fuppofed  in  every  peace,  that  no  adtion  fhall  be  commenced  for  da- 
"  ma'^es-done  in  war,  which  is  alfo  to  be  undeiftood.of  thofe  done  to  private  per- 
"  fons  ;  thefe  being  alfo  the  effeds  of  war  :" — 

The  equity,  as  between  creditor  and  debtor,  of  denying  intereft  during  the  war, 
whereby  "  the  creditor  and  debtor  will  be  put  upon  a  more  equal  footing  ;  and  a 
f*  Ibis  will  not  be  incurred  by  the  debtor,  for  the  fake  of  a  gain  to  the  creditor :" — 


<( 


(       29      ) 

The  evidence  of  fuch  equity,  arifing  from  «  the  praiHice  of  the  courts  and  jurits 
in  difallcv/ing  interelt  during  the  war,  generally,  throughout  the  United  States;" 
fuch  being  ilated  to  have  been,  and  to  be  "  the  prnaice  of  the  courts"  (and  of 
juries  in  all  cafes  that  v/ere  "  under  the  power  of  their  verdias")  of  New- 
**  Tori,  Neau-Jerfeyy  Ptnnfylvamay  Delaivnre,  Marylatu/,  V'trgln'uh  and  South- 
»♦  Carolina;  in  fome  of  whicli  States  the  claims  (it  is  fuid)  of  Britifh  debts  were 
**  fb  inconfiderable,  and  fo  few,  as  not  to  have  occafioned  public  concern,  or  to 
'*  have  excited  any  prejudices  :" — 

The  evidence  of  fuch  equity,  in  particular,  arifing  from  the  judgment  and  opi- 
nions dcUvered  by  the  judges  of  one  of  the  State  courts  of  Virginia  againft  the  allow- 
ance of  fuch  intereft,  in  the  cafe  of  M'Call  againjl  Turnery  decided  in  1 796  ; 
On  which  occafwn  it  was  ftated  from  the  bench  (as  appears  from  the  report  of 
the  cafe  in  the  appendix  to  the  anfwer)  that  on  comparing  «*  the  condu^  of  the 
*«  two  nations"  during  the  war,  "  the  comparifon  was  evidently  in  favour  of  Ame- 
"  rica  ;"  that  of  Great  Britain  amounting  to  ij  many  deflexions  from  the  modern 
««  rules  of  warfare,  which  did  not  entitle  the  creditors  even  to  th»-f  rincipal  debts 
"  themfelves,  had  they  not  been  ftipulated  for  by  the  treaty  of,  ace;"  a  iHpuIa- 
tion  which  "  although  it  was  unjuft  and  inconvenient  in  one  reipea,  yet  as  the 
«'  other  parts  were  efteemed  beneficial,  it  was  right  to  accept,  fyr  the  fake  of  the  • 
"  gen«ral  advantages  it  contained  :" — . 

And  the  further  evidence  of  fuch  equity  arifing  from  the  general  impreflbn  in 
America  daring  the  war,  that  "  in  a  conteO  of  that  kind,  if  fuccefsful,"  few 
would  be  "  required  at  a  future  day  to  pay  fuch  intereft." 

RESOLVED— That  the  defcription  contained  in  the  4th  article  of  the  treaty 
of  peace,  of  the  nature  and  extent  of  the  right  and  property  thereby  fecured  againlt 
the  operation  of  lawful  impediments,  viz.  "  ih^  full  value  in  fterling  money  of  all 
♦'  bona  fide  ikbts,  theretofore  contraded,"  is  a  defciTption  in  terms  which  are  clear 
and  explicit ;  and  therefore,  the  authorities  which  have  been  referred  to  on  the  con- 
flrudion  of  "  obfcure  or  ambiguous  padts,"  bear  no  application  to  the  prefent  quef- 

jifjn  : That  the  full  value  of  a  bona  fide  debt  muft  mean  the  full  amount  of  the  obit- 

gation,  with  all  its  incidents,  according  to  the  contrad  : — That  intereft  has  been 
rightly  defined  on  the  part  of  the  United  States,  to  be  a  fixed  andTettled  compen- 
fation  for  the  damages  fuftained  by  the  creditor  through  the  detention  or  delay  of 
payment  of  the  original  debt,  «  that  he  may  not  be  a  lofer  ;"  and  in  law  as  well 
as  in  equity,  fuch  conipenfation  is  confidered  as  a  growing  increafe  of  the  debt  it- 
felf;  the  form,  in  certain  cafes  of  recovering  or  awarding  fuch  increafe  of  debt  in 
courts  of  law,  by  the  name  of  damages,  leading  to  no  fubitantial  diltindion,  incon- 
filtent  with  the  known  and  long  eftablifhed  nature  of  the  right,  and  that  common 
acceptation  of  language  by  which  alone  the  treaty  muft  be  conftrued  : — For  the  ar- 
gument which  has  been  laid  before  the  Board,  from  the  letter  of  Mr.  Jcferfon  to 
Mriv  Hammomh  previous  to  the  treaty  of  amity,  referred  to  in  the  anfwer  to  the 

claim- 


a, 


(     3°     ) 

ci.iii.i,  is  an  elaborate  mifapplication  of  authorities  on  the  technical  diftinftions  ana 
rdlriaive  language  of  form  in  courts  of  law,  wliich  the  framers  of  the  treaty  cannot 
hz  prcrumcd  to  have  known,  and  never  nicant  lo  apply  : — That  if  from  the  deno- 
mination  of  damages,  as  applied  to  interell  in  courts  of  law,  the  conclufion  could  be 
drawn,  i/jat  interejl  ituis  not  debt,  and  therefore  not  luitlnn  the  meaning  of  the  treaty, 
fuch  conclufion  would  affea  the  claim  of  intereft  in  time  of  peace,  as  well  as  during 
the  war,  and  therefore  reach  too  far  for  the  argument,  which  admits  that  intereft  ac- 
cruing in  time  of  peace  is  due  according  to  the  contraft  : — That  if  any  rcalonable 
rround  of  doubt  remained,  it  would  be  removed  by  certain  fads,  as  ftated  on  the 
part  of  the  United  States,  and  from  which  a  contrary  inference  has  been  drawn, 
viz.  the  demand,  in  the  courfe  of  the  ncgociation  previous  to  the  treaty,  of  a  deduc- 
tion of  intereft  during  the  war  ;  the  filencc  of  the  article  on  that  head  ;  the  fubfe- 
qucnt  fuggeftion  by  the  American  miniiter  in  the  year  1786,  of  "  the  policy  of 
"  giving  up"  fuch  intereft,  thereby  admitting,  as  a  matter  of  neceflary  implication, 
that  the  payment  of  the  intereft  to  be  thus  "  groen  w^,"  had  been  previoufly  (tipulatcd 
and  fecured  ;  and  the  anfwer  made  by  the  Britifli  fecretary  of  ftatc  to  the  fug- 
jteftion  of  thus  ^i  giving  up"  the  faid  intereft  on  principles  of  policy,  viz.   "  that 
"»''  it  might  be  left  for  an  after  confidertion  ;"  with  the  fad  that  it  never  was  on 
after  confideration  given  up,  but  on  the  contrary,  by  the  6th  article  of  the  treaty  of 
amity,  which  adopts  the  fame  general  terra  "  debts'"  as  defcrlptive  of  the  fubjeft 
jiiatter  thereof,  «'  the  commiffioners  are  empowered  and  required,   in  purfuance  of 
"  the  true  intent  and  meaning  of  the  faid  article,  to   take  into  their  confideration  all 
««  claims,  whether  of  principal  or  interejl^  or  balances  of  principal  and  intereft" 
(without  any  allufion  whatever  to  a  diftindion  between  the  cafe  of  intereft  during 
the  war,  and  intereft  in  time  of  peace)  "  and  to  determine   the'lume  refpedively, 
'*  according  to  the  merits  of  the  feveral  cafes  ;  due  regard  being  had  to  TiWthecircum- 
*'  flanges  thereof  and   as  equity  and  juftice  ftiall  appear  to  them  to  require  :"•— 
That  the  Board  arc  thus  empowered  by  the  treaty  of  amity  to  award  intereft  dur- 
ing the  war ;  but  it  is  rightly  maintained  on  the  part  of  the  United  States,  that 
no*  award  can  be  made  under  the  treaty  of  amity,  which  is  not  founded  on  a  right 
fecured  by  the  treaty  of  peace  ;  therefore,  an  award  of  intereft  during  the  war  will 
be  founded  on  a  right  fecured  by  the  treaty  of  peace  :— -From  all  which  it  follows, 
not  only  that  tire  general  term  "  debts"  in  the  4th  article  of  the  treaty  of  peace, 
comprehends  the  ixihok  intereft,  as  well  as  the  tuhole  principal ;  and  that  the  Board 
are,  by  the  treaty  of  amity,  required  to  take  the  fame  into  their  confideration  < 
but'alfo,  that  they  are  bound  to  decide  «  according  to  the  merits  and  circumftances 
"  oi  the  feveral  cafes,"  upon  fuch  principles  as  (with  reference  to  the  faid  merits 
and  circumftances  of  each  particular  cafe)  fhall  appear  to  them  to  be  juft  and 
equitable  :— Nor  is  any  diftinftion  to  be  found  in  any  of  the  treaties  between 
that  part  of  the  claim  which  is  compofed  of  intereft  and  that  which  is  compofed 
of  principal,  the  Board  having  no  greater  power  of  decifion  over  the  one  than 
over  the  ether  :— That  it  is  not  alledged,  nor  does  it  appear,  that  any  fpecial  bar 
or  ground. of  objedtion  againft  intereft  during  the  war,  arifes  out  of  the  nature  or 
terms  of  the  tontrads,  or  other  particular  merits  or  circumftances  of  this  cafe  ;  nei- 
ther is  there  any  general  ground  on  v/hich  the  cafe  can  be  confidered  as  forming  an 

exception 


*-  ^ 


(     3'     ) 

exception  to  the  pofition  arlfing  out  of  the  law  of  niitions  and  before  recited  (as  flatcd 
and  referred  to  on  the  part  of  ths  United  States)   viz.  "  that  debts  due  to  ])rivr.tc 
"  perfons  before  awar,   fliall  be  paid  after  the  war  ;  and  with  intsreft  durin;^  the 
«*  war,  if  fuch  was  the  contraft  either  tacit  or  exprefs."   For  ewry  inference  w'vch 
can  be  diawn  from  the  particular  nature  of  the  war,  as  diftinift  from  tliat  *'  of  or- 
"  dinary  wars  between  independent  nations,"  is  in  favour  of  the  original  rontrai'^ 
between  the  parties,  and  gives  llrengtii  and  application,  a  fnrl'torlyto  the  found  poli- 
cy of  juilice,  which  prcferves  unimpaired  by  national  hollility,  the  full  eifeift  und 
integrity  of  good  faitli  in  private  tranladion :— But  on  this  head,  the  fentiments  of  the- 
Board  cannot  be  better  cxprefTcd  than  in  the  words  of  a  leiirnerl  jud;',e  ( P,it!crf<::iJ 
who,  in  delivering  his  opinion  in  the  fupreme  court  of  the  United  States   on  the 
7th   day  of  February  1796,  in  the  cafe  Jcties  v.   //>7/0;-7,   exprefTcd  hlmfolf  as 
follows : — **  I  feel  no  hefitation  in  declaring,  that  it  has  ahvays  appeared  to  me  to 
"  be  incompatible  with  the  principles  of  julHce  and  policy,   that  conirads  cntcrcil 
««  into  by  individuals  of  different  nations  (hoidd  be  violated  by  their  rcfpeiSlivcgo- 
<•  vernments  in  confeqnence  of  national  quarrels  and  hollilities — National  tli^crnices 
*'  JIjouIcI  not  nJfeB private  bar^ralm.     The  confidence ,  both  of  an  individual  and  na- 
"  tional  nature,  on  which  the  contra^fls  were  founded,  ouglit  to  be  preferred  invic- 
f<  late.     Is  not  this  the  language  of  honefly  and  honour  ?  Does  not  the  fcntimcnt 
«•   correfpond  with  the  fentiments  of  juflice  and  the  divTiates  of  the  moral  fonfe  ?  In 
t<  fhort  is  it  not  the  refult  of  right  reafon  and  natural  equity  ?  The  relatioh  v/hlch 
the  parties  Hood  in  to  each  other  at  the  time  of  contraiSang  thefe  debts .  ought  not 
to  pafs  without  notice.    The  debts  were  contracted  when  the  creditors  and  debt- 
ors were  fubjefls  of  the  fame  king   and  children  of  the  fsime  family.    They  were 
made  under  the  famStion  of  laws  common  to,  and  binding  on  both,     yf  revolu- 
tionary war  could  not  like  other  ivars  be  forefeen  or  calculated  upon  : — The  thing 
was   improbable  : — No  one  at  the  time  debts  were  contradcd  had  any  idea 
of  a  feverance  pr  difmemberment  of  the  empire,   by  which  perfons   who  had 
been  united  under  one  fyflem  of  civil  polity  fhould  be  torn  afundcr,  and  bcconfle 
enemies,  for  a  time,  and  perhaps  aliens  for  ever.     Contrails  enteicd  into  in  fucii 
a  ftate  of  things  ought  to  be  fiic redly  regarded: — Inviolability  feems  to  be  at- 
"  tachedto  them  :" — -"  The  conftruflion  of  a  treaty  made  in  favour  of  fuch  cre- 
"  ditors,  and  for  the  reflroration  and  enforcement  of  pr-e-exifting  contrads,  ought 
"  to  be  libc  al  and  bepign  : — For  thefe  reafons.this  claufe  in  the  treaty  defervcs  the 
"  uimoji  latkude  of  cxpofitlon  :'^ — That  independent  of  the-  irrelevancy  of  the   faft 
in  a  queflion  of  private  right  fecured  to  creditors  by  treaty  and  the  law  of  nations, 
the  prevention  of  remittances  to  Great  Britain,  and  ♦*  detention  of  debts  during 
"  the  war,"  ought  not  to  have  been  afcribed  to  the  "  interdiiftion  of  commerce  to 
"  the  United  States  by  the  Britifli  parliament:" — For  by  virtue  of  a  refolution  cf 
congrefs,  which  took  place  on  the  10th  day  of  September  1775,  and  which  war. 
Uited  and  recognized  by  the  fupreme  court  of  Pennfylvania  in  deciding  t.he  cafe  of 
Hoare  agalnjl  yllkn,  the  exportation  of  all  merchandize  and  commodities  whatfo« 
ever  to  Great  Britain,  Ireland  or  the  Wefl  Indies,  was  prohibited  ;  the  faid  refo- 
lution  rendering  it  afterwards  (as  laid  down  by  the  court  in  that  cafe)  "  unlawful 
"  to  make  remittances  to  Great  Britain:"     And  on  the  2cth   day  ol  Ofiobtr 

1   ^  M  ^ 


cc 
<< 
(r 
<< 
(( 
<( 
U 
<c 

(C 

(( 


<     ^^     ) 

•  -■•■',  an  aft  of  afTembly  was  pafled  by  the  State  of  Virginia,  whereby  authority 
Wus  given  and  an  invitation  held  forth  to  the  debtors  of  Britidi  creditors,  to  pay 
their  debts  into  thz  Loan  Office  of  the  State;  (andfiich  payments  were  afterwards 
accordingly  made  in  depreciated  paper  money,  ai  the  nominal  value,  to  a  great 
amount;)  the  preamble  of  which  ad  of  affembly  ftates  a  motive  for  the  law  in  the 
following  terms;  ♦«  But  the  fafety  of  the  United  States  demands,  and  Uie  law  and 
«'  ulagcs  of  nations  will  jtlUfy,  that  'wejhouhlnotjlrengthen  the  hands  of  our  enemies 
«  during  the  continuance  of  the  prcfcnt  war,  by  remitting  to  them  the  profits  or 
«  proceeds  of  fuch  ellates,  or  the  inierejl  or  pri.icipal  of  fuch  debts:"  Nor  can  it 
be  received  as  ,a  better  reafon  for  withholding  intereft  on  juft  debts,  that  "  cre- 
"  ditors  and  their  faiftors  left  Virginia  and  carried  away  their  books  and  vouchers, 
"  and  were  inaccefRble  to  the  debtors  till  the  return  of  i^eace:*' — For  the  procla- 
mation by  the  governor  of  Virginia,  dated  the  3d  day  of  June   1776,  which,  witli 
the  charges  and  accufations  it  contains,  as-iffuedin  the  heat  of  war,  has  been 
printed  at  full  length  in  the  appendix  to  tiie  anfwer  "  ftrialy  requires  and  enjoins 
♦♦  all  the  natives  of  Great  Britain  who  were  partners  with,  faHors,  agents,  flcre- 
"  keepers^  ajiflant  florekeepers ,  or  clerks  here,  for  my  merchant  or  merchants  in  Great 
"  Britain,  on  the  Jirjl  day  of  January  1 7  76,  to  depart  this  Commonwealth  with  their 
"  goods,  within  forty  days  from  the  date  hereof,  except  fuch  of  the  fliid  natives  as 
"  have  heretofore  uniformly  manifefted  a  friendly  difpofuion  to  the  American 
"  caufe,  or  are  attached  to  this  country  by  baviog  wives  or  children  here  agreeable 
"  to  a  refolution  of  the  general  affembly  in  that  cafe  made;"  in  confequence  of 
which  proclamation,  many  perfons  of  the  defcription  therein  mentioned  did  of  courfe 
depart.     That  as  all  coercive  mcafure?  for  recovering  payment  of  Britifti  debts  were 
of  courfe  fufpended  during  the  war,  fo  voluntary  payments  were  thus  prevented  by 
laws  or  public  ads  of  the  State,  prohibiting  remittances  to  Briti(h  creditors  who 
were  not  within  the  State,  and  competing  thofe  who  w^rc  within  the  State  to  de- 
part.    And  it  cannot  be  juft,  that  laws  fhould  fiift  be  paffed»  making  remittances 
unlawful,  and  driving  creditors  and  their  agents  from  the  State  ;  and  die n  intereil 
withheld,  becaufe  remittances  wer-e  unlawful,  and  creditors  and  their  agents  ab- 

f;nt: That  if  it  could  be  maintained,  that  laws  which  were  avowedly  made  to 

detain  the  money  in  the  country,  for. the  double  purpofe  of  weakening  the  enemy 
by  withholding  their  property  during  the  war,  -and  of  fecuring  the  ufe  of  it  for  the 
public  fervice,  had  the  effed  to  deprive  the  creditor  of  hii  jight  to  demand  pay- 
ment of  intereft  as  well  as  principal  on  the  return  of  peace,  luch  laws  fo  operating 
againft  the  recovery  of  the  full  value  of  bona  fide  debts,  would  of  courfe  come 
within  the  defcriptlon  of  lawful  impediments,  entitling  the  <:reditor,  under  the 
treaty  of  amit'%  to  compenfation  for  the  lofs  thereby  fuftained;— But  from  the 
faas  which  have  been  fet  forth  on  the  part  of  the  United  States,  tl-.ere  is  at  leaft 
no  room  for  any  general  prefumption,  that  if  the  courfe  of  reraittanoj  had  been  free, 
remittance  would  have  been  made;  or  if  Britini  creditors  and  faftors  had  remained 
in  the  State,  payments  woirld  have  beert'  received:— For  it  is  ftated  in  the  anfwer, 
that"  all  the  produasofthe  land  were  ^ndifi>enfably  neceffary  for  detence,  and 
«  nothing  was  left  to  an  individual  for  paying  intereft  on  his  debt;"  from  whidi  it 
alfo  follows,  that  nothing  can  be  more  remote  from  al^rcfemblence  to  the  prefent 

cafe 


(     33     ) 

cafff,  than  that  of  tfriffer  and  refufal  at  Ixw,  to  ^vh!ch   it  hr.s  been  afliniil.ucJ 
in  the  letter  from   Mr.  Jtfftrfon  bcrore-mentioned  j  the  very  eflcnce  of  tender 
and    rcfufal   confifting    in   the  adlual  offer  of  the   money,  and  its  being  alivays 
rtudy    to  be  paid  : — That  as  the  means  whiclj  might  othcrv.ife  have  been    ap- 
plied towards  payment  of  Britifh  debts,  were  thus  expended  in  fupport  of  the  v/ar 
with  Great  Britain,  it  is  of  no  importance  to  the  concluhon,  whether  that  war 
•*  was  on  the  llde  of  America"  maintained  under  the  circumfbinces  which  havo 
been  dofcribed,  and  merely  '*  for  defence"  ajjainll:  hollile  aggreilion;  or  for  the  at* 
tainment  of  great  and  valuable  public  objects: — For  Britilh  creditors  were  individu- 
ally on  the   return  of  peace  as  little  relponfible  in  the  one  cafe,  as  entitled  to  or 
poileiFed  of  any  participation  of  benefit  from  the  event  in  the  other; — That  all  ar- 
guments againll:  the  jult  rights  of  individuiils  derived  from  the  nature  and  caufcs  of 
the  war,  or  refletlions  on   the  manner  in  which  it  was  conducted  on  tlic  one  iidc; 
or  on  the  other,  are  befides,  as  inconfiilent  with  the  eftabliflicd  principles  of  th'j 
lav/  of  nations,,  as  repugnant  to  the   fpuit  of  that  difculfion  v/hich  ought  to  tahi 
place  in  I  he  execution  of  a  treaty  of  amity  : — And  fo  far  only  will  the  Board  animad- 
vert on  the  publication  of  charges  againil  Great  Britain  refpeccing  tlie  nature  and 
condu6l:  of  the  war,  as  itated  in  the  printed  anfwer  in  this  cafe,   and  documents 
thereto  ai  -^exed,  in  terms  of  delcription  which  little  accord  with  the  buhncfs  of 
conciliation  and   peace  : — That   the  general  politioii   in  favour  of  debts  due   to 
private  perfons  before  a  war,  as  being  recoverable  on  the   return  of    peace,  with 
intereft  according  to  the  contract,  has  been  flated  and  admitted  on  the  part  of  th^ 
United  States  ;  and  in  addition  thereto   the  following  pafllige   has   been   quoted 
Irom  Vattcl,  viz.  ♦'  if  nothing  tlfc  be  agreed  ttpon,  yet  this  is  to  be  fuppofed,  that  no 
"  ai5>ion  fhall  be  commenced  for  damages  done  in  war,  which  alfo  is  to  be  under- 
"  flood  of  thofe  done  to  private  perfons,  thefe  being  alfo  the  clfeifls  of  war  :"-r- 
But  if  this  latter  pofition  had  reference  as  has  been  argued,  to  the  cafe  of  intereft, 
it  would  be  dlredtly  inconfiflent  with  the  former;  beiides  being  precluded  in   it; 
application  to  the  prefent  cafe  by  the  condition  it  contains;  for  here  there  is  211 
exprefs  agreement  by  treaty  to  the  contrary  ;  and  as  damage  done  in  v;ar  to  the 
property  or  efFeds  of  individuals   is  not  the  fubjed  of  an  action  on  the  return  of 
peace,  fo  it  cannot  m  jurtice  be  the  ground  of  objcdlion  or  defence  agalnft  an  aifticn 
for  recovery  on  an  antecedent  right: — That  the  cafe  which  has  been  put  and  relied 
on,  as  ftatedin  the  faid  letter  from  yiv.  Jejerfon,  of  Intereft  feparatcly  fecur;d  by  an 
afflgnment  of  lands,   of  '*  a  general  and  national  calamity"  by  which   '*  nothing  is 
'■■  -made  out  of  the  lands"  io  afligned,  and  of  the  ll:oppage  of  the  c.   -^.i  7  of  fuch 
interell:  during  fuch  cabmity,  bears  no  analogy  v/hatever  to  the  prefjoi  cafe  : — For, 
without  enquiring  how  far  the  nature  of*'  the  general  and  national  calamity"  con- 
templated in  ♦■he  cafe  referred  to,  Supports  the  comparlfon  ;  or  reftlng  upon  the  facl, 
that  in  this  cafe  payment  was  not  withheld  from  a  failure  of  means,  but  fro.n  th;; 
application  of  thofe  means  on  the  part  of  the  debtor  to  ot'ier  purpofes,  it  is  fahiclc^it 
that  here  there  is  no  fucn  aflrgnment  of  lands,  or  fpccific  appropriation  and  accept- 
ance of  a  particular  fecurity  or  fund  of  payment;  but  a  ftmple,  abfolatc,  and  un- 
(juulificd. obligation  by  the  debtor,  that  the  debt,  principal  and  interetl,  without 

E   .  di(Hn(5t'.on 


(     3+     ) 

S  ^C^i:S^^:^^'^^^^^  Mr.  «.  .Z.,>^.  in  the  cafe  of 
T^aXfl  VoUls,  as  follows,  viz.  "  In  (hort,  ^.he  ;^. 5.000  paid  with  .ntcrc^  a 
«  hiX  is  notin  faa  or  law.  more  than  the  ^^.5.000  paid  wallput  u.tereft  at 
hJ  d^r  t  becomes  due  :"-^That  an  award  of  intercU  during  the  war  would 
not  As  1  L  bet  urecd)  cr  ate  "  a  lofs  to  the  debtor  for  the  fake  of  a  gam  to  the 
"   cr«i  or  •''  f^^^^^^^  to  the  compendious  defcriptiorvof  the  nature  of  mtereft 

wlSl    s  -uft  been  referre'd  to.  .nd  L  definition   already  ft^jed.  as  numt W 
Tith  much  arcument,  and  on  many  authorities,  on  the  part  of  the  United  btates, 
Tn  e  eri  Itl^   rbu  compet-Hmon  to  prevent  lofs  ;  fo  that  the  denial  of  mtere  I 
^dd  be  gaTn  to  the  debtor,  and  lofs  to  Ihe  creditor;  with  ^J -"^^^ /"  J'^^  d 
tlon  to  thf  additional  valueof  money  during  the  war  :-That  therefore  .fth.W 
u  .  e  to  deuirt  from  their  duty,  in  the  impraaicable  attempt  fugge  led   n  the  aniwer, 
If  pacintStorand  credit!;  -  upon  in  equal  foctins^;  by  eft.matmg  conjedu  al 
loffes  and  ba  ancing  inequalities  in  their  refpeftive  f.tuations.  advantages,  or  fuffer- 
nis  dul;  tJie  war,  the  fettled  rate  of  intereft  might  be  fouud  in  many  mftances 
to^fif  very^fa   fl^ort  of  the  loffes,  immediate  or  remote,  fuftamed  by  the  credito 
hrouUlV  detention  of  his  debt,  at  a  time  when  payment  was  moft  waned; 
twetegai^o  the  debtor,  in  the  application  or- ufe  -{}^- r"""^ ^\TT^^l 
withheld   might  far  exceed  the  amount  of  intereft  for  which  he  was  liable  ;-That 
Ts  many  ind  vidual  inhabitants  of  the  United  States  were,  doubtlefs,  reduced  to  a 
ftatTof  infol  ency  by  the  war,  fo  it  is  matter  of  equa   notoriety,  that  many  Buufl^ 
^iTchait  anSo'the'r  fubje^s  of  his  Britannic  -ajei  y  were  dnven  -^nk^^^^^^^^^^^ 
and  ruin  through  the  lofs  of  trade,  non-payment  of  ^^^^t,  and  other  circumltance^ 
arifmn  from  the  farne  common  calamity ;  but  it  does  not  appear,   nor  has  t  been 
a  iSd    tL   any  fuch  claim  of  exemption  from  intereft  during  the  war  has  ever 
on  thafaccount  been  attempted  or  fet  up,  or  could  be  maintained  in  any  of  hisfaid 
maiSl^sZ^^^^  britifh  debtor,  however  unfortunate,  or  however 

deulv  his  loffes  might  be  deduced  from  the  fame  caufe  which  has  been  held  a  fuffi- 
cient  groLd  for  fu?h  exemption  in  favour  of  American  debtors;  fo  that  //..  /n«. 
S/?aprd  by  the  learned  judge,  and  on  the  occafion  firft  above-mentioned,  to 
he  cat  of  BrUiilx  creditors  Vhtfe  debts  had  been  paid  into  the  State  treafury,  1. 
eaualt  anpliclb le  to  the  prefent  queftion,  and  was  flated-by  the^faid  learned  judge 
nTh  efblw  ng  tem^^ :  -  The  conitru6lion  on  the  part'of  the  defendants  excludes 
'    li7    The  debts  due  from  Briti(h  fubje£ts  to  American  citizens  were  n^ 
confifcated  or  fequeftered,  or  drawn  into  the  public  coffers.     They  ^yere  iett  un- 
-  touS      Now^^    all  the  Britifh  debtors  be  compelled  to  pay  their  American 
credkor      and  a  part  only  of  the  American  debtors  be  compelled  to  pay  their 
Britm  creditors,  there  will  not  be  that  mutuality  in  the  tlnng  which  its  nature 
and    uftice     qu^es.     The  rule  in  fuch  cafe  fliould  work  both  ways ;  whereas 
Jheoh     cona^^^^^^  mutuality  and  proceeds  upon  indifcrim.natmgjnn. 

ciples.     The  former  conftru^ion  does  violence  to  the  letter  and  fpir     of  the 
inftrument ;  the  latter  flows  eafily  and  naturally  out  of  it ;  -And  fo  it  may  be 


<( 


«< 


(     35     ) 

fatd,.'  that  If  dcbtora  in  Great  Tjiitain  to  American  creditors  may  be  comijcllec!  to 
pay  their  full  debts,  intereft  as  well  as  principal,  and  debtors  in  America  to  Biitifh 
creditors  can  only  be  compelled  to  pay  a  part  of  their  debts,  viz.  principal  and  part 
of  the  intereft,  the  conftrudion  '•  excludes  mutuality"  in  the  executioii  of  the  ar- 
ticle,  and   "  does  violence  to  the  letter  and  fpirit  of  the  inftrumcnt :"— That  the 
allcdgcd  equity  of  denying  intereft  during  the  war,  derives  no  fupport  I'.om  the 
cxpcdation  which  it  is  faid  prevailed  during  the  v/ar  on  ihc  pirt  of  debtors  in  Ame- 
rica, that  *'  if  the  event  proved  fuccefsful"  they  would  be  thereby  fo  far  relieved 
from  the  payment  of  their  debts  ;  for  the  fame  expeflation  may  have  prevailed  to 
the  full  extent  of  the  WW^  Mt   due  to   fubje^s   of  Great    Britain,  principal  as 
well  as  interelt :— -Nor  can.  any  fuch  equity  be  fupported,  on  the  Tcrdifts  and  deci- 
fions  of  courts  againft  fuch  intereft  ;  whether  they  have  been  given  in  thofe  particu.- 
lar  States  in  which  it  is  alledged  "  the  claims  of  Britifh  debts  were  fo  inconfidcrablc 
"  and  fo  few  as  not  to  have  occafioned  public  concern,  or  to  have  excited  any 
"  prejudices  ;"  or  in  States  where  the  claims  of  Britiih  debts  were  fo  confiderablc 
and  fo  many  as  to  occafioq.  "  public  concern"  and  "  excite  prejudices  :" — For 
fuch  veidifls  and  decifions  againft  any  part  of  tJie  flipulate^  or  fettled  interelt  of 
juftdebts,are  themfelves  the  fubjed  of  complaint  before  this  Board,  as  lawful  impe- 
diments to  the  full  recovery  of  fuch  debts ;  on  the  exiltence  and  juftice  of  which 
the  Board  are  bound  and  authorized  exclufively  to  decide  : — That  therefore  no 
lufficient  caufe  has  been  fhewn,   why  in  awarding  full  and  adequate  compenfation 
for  fuch  debts  as  maybe  proved,  within  the  intent  and  meaning  of  tlie  treaties,  fulf 
interefl  fliould  not  be  awarded  for,  the;  detention  and  delay  of  payment  during  the 
war,  as  well  as  in  time  of  peace  ;  but  pn  the  contrary,  for  the  above  rcafons,  and 
others  which  might  be  ftated,  it  is  juft  that, fuch  intereft  (hould  be  awarded,  ac- 
cording to  the  nature  and  import,  exprefs  or  implied,  of  the  feveral  contrads  on 
which  the  claim.is  founded. 

Mr.  SiTGREAv^s  diflented  from  the  above  refolytion. 
Mr..  Fit  z  SI  MOWS  alfo  diflented. 


Philadelphia,  lC)th  Dec,  I798.- 

In  the  Cafe  of  Cunningham  and  Co. 

IVlR.  SiTGREAvjES  defired  to  enter  his  diflertt  from  the  refolutlon  in  this 
cafe  pafled  at  the  laft  meeting,  for  reafons  ftated  in  a  minute  which  he  prefentcd 
and  read  before  the  Board. 

Mr.  FiTzsiMONs.  ftated  that  he  would  prepare  a  ininiite  containing  his  reafons 
againft  next  meeting. 

Phikdelphidy 


(     3<5    ) 


Phiiadclpbiat  2i/?  Dec.  1798' 


In  the  Cafe  0/ Cunningham  and  Co. 

from  all  tlie  principles  and  inferences 

which  I  cannot  concur.  fnecifically  apply  to  the  cafe  in  which  it  purports 

I  diffent  alfo,  becaufc  it  does  not  F^^""y  ^1 J  i  conckfion  on  a  fubjea, 

or  equitable.  ^,    ^^^  ^uh  as  little  prolixity  as  poffiblc.  the 

I  will  proceed  to  explain,  in  aetaii,  u 
different  grounds  of  diffent.  bv  the  6th  article  of  the  treaty  of  amity, 

,ft      I  aRree  explicitly  that  the  Boaid,  by  m^^^^^    «  whether  of  principal  or 
arfaithoriz'ed  to  Lnf.der  -d  dete-  e  all  c^^^^      ^^^^^^^  ^^  .^^, 

t;  i«/.rjy2  ;"  and  that  ^^ffjl'^^'f,  j  bts"  in  the  treaty  of  peace  to  eM  the 
technical  interpretation  of    he  word      d  ^^^^  ^^  ^^^  ^^       her  penod  .-Or 

-"^'^^^tth:  at^r'f  intS  in  ar/cafe,  where  it  may  be  deemed  juft 

IVSlTthat  it  (liould  be  i>aid  ^^         ^^g^,,,,  ,hat  the  fame  word 

■Rut  on  the  other  hand    it  s  5^^^7  r,      -.ber  dur  ng  the  war,  or  toi  any 

.    ?  uT"  Les  not  neceffarily  ««c/«*^^/nierelt,  eith^^^^^  «  full  value"  in  the 


(  rj  ) 


iu„  u.  vu.  .......  ,  bccaufe  the  allow?.nce  or  denial  is,  hy  the 

reacy,  nude  to  depend  on  Uie  merits  znd  dr.umjlances  of  each  cale  ;— 
■laim   but  of  each  cafe  or  item  of  debt  coutained  in,  and  conftituung 


formable  to  the  fubmlffion  In  the  treaty 
terma  of  the  treaty,  n^ 
Not  of  each  claim  bu 

'^."J'"  mV«t^^^^^  will  require  us  to  deny  intereft  in  a  variety 

of  cafes,  in  fome  daring  the  war,  in  others  for  a  longer  term,  and  m  others  alto- 
pcthe  Vill  b.  evident  on  a  conf.deration  of  the  nature,  the  meaning  and  cha* 
faaer  of  intercll  :--From  this  conf.deration  it  may  alfo  refult  that,  in  fome  calcs. 

♦K»  «,i/.n//»  intereft  ought  to  be  awarded.  ^        ,        • 

The  word  -  Interest"  has  not  always  the  fame  f.gnif.cation  :--0r  rather,  ,t 
1,.,  /.I  different  .nd  dirtinft  f.gnifications.     It  fomctimcs  means   <  the  h.re  of  mo- 
^rneT''f"  wages  for  the  ufe  of  money  :"-This  was  the  ancient  acceptation  o 
he  tJrm    and  is  the  acceptation  in  whica  it  is  ftiU  ufed  by  writers  on  the  law  o 
nature  a^d  of  nations,  and  on  political  economics  :--This  is  its  proper  import 
Xn  it  is  ftipulated  to  be  paid  on  a  loan,  in  which  cafe  it  may  be  delcnbed  as  of 
ISoSioa  i?n"  becaufe  it  is  the  effential  confideration  of  the  contraft,  and  is  em- 
*{haticJv  ^2  of  the  debt  .-It  is  a  dirtinguilhing  feature  of  this  fpecies  of  interel  , 
fhat  it  lyte  owing  I  fore  the  principal  is  due,  as  in  contrads  for  money  payable  at 
1  Hiftant  dav   but  bearing  a  prefent  annual  ifiterclt. 

in  the  X  fi.nification  if  the  term,  intcrrfl  is  fynon.mous  with  dama^^cs  :^\l 
is  damages  for  t  -  breach  of  contract,  or  more  properly    '  it  is  the  ..mm.«  ..^r.- 
Tlm^r  v  here  the  contraft  is  for  money"  ^  Tr.  Lq.  hl>.  5    ch .  I.  s.  i.  Ihi 
1  Tcciptnif^^  i"  municipal  jurifprudence    and 

\thchX"ppUes  to  that  vad  variety  of  the  common  tranfaaions  between 
•Sua      -in  w    ch  the  failure  of  punftuality  is  a  ground  of  comp  aint  in  the 
rntts  of  ivmce  :--In  th>.  fenfe  it  partakes  efTentially  of  the  nature  oidama^^cs  m 
!/frcm  which  it  is  only  diafnguifliable  in  this    that  it  is  meafured  by  a. 
si  rt-e     "fixtl  by  the  law  to  a  certain  portion  of  the  fum  that  is  due    for 
r^hlZce  of  a  year,   and  proportionably  for  a  longer  or  fliorter  time.  '     i  Do,.. 
A    //'        Bui  co^formably'to  the  general  cha. after  of  da.n.s^s    and  contrary 
tt  n   ribute  of  the  fort  of  intereft  firft  defcribcd,  it  can  never  accrue  ""^'^  there 
0  the  ^^-"bute  0   t  performance  of  his  contraft-and,  like  di- 

^"' i    it  i    d"p  nl^^^^^      circumVnces  of  that  default ;  for,  when  it  fl.all 
mages,  It  »;dependen\0  j  ,     .  .  ^^^^  .^hen  it  fliall  be  r.^ro;..,  or 

?LitLnt  determined  "  acceding  to  the  mems  of  the  feveral  cales,  due  ro- 

",rd  beinc  *    had  to  all  the  circumftances  thereof.  ,       •      •        r  ,  „.\n- - 

^^   In  clffs  to  which  the  JrJ  fenie  of  the  word  applies    that  is    in  caf  s  wnctc 
Int  i^ftt  0    ftHa  obligation    and  forms  a  fart  of  the  debt    I  agree  that  the  ^^ 
intereft  nnift  be  paid,    as  well  during  the  war     as  for  any  other  penod.     I  tn    k 
^e  la  V  of  nations!  and  the  ftipulation  of  the  treaties  equally  produce  this  ciTca.    n 


(     38     )• 

that  thou'h  the  ftate  of  war  fufpcnded  the  remedy  it  did  not  fufpend  the  right  :~—  - 
I  incline  to  think  that  the  fame  'cccptation  of  the  term  will  ajjply  to  thofe  cafes  ot - 
fiyedally,  for  whatever  reafon  given,  which  exprefsly  bear  interell  on  the  face  of  the 
injlrtimeut,  although  on  this  fubjeiSt  I  defire  that  I  majj  not  be  confidered  as  con- . 
eluded  by  this  intimation,  as  the  enquiry  does  not,  at  leaft  jf/,  appear  to  be  effen- 
tially  conneded  with  this  argument,  in  this  cafe : — The  quelHon  of  intereft,  ac-^ 
cording,  to  the  ufage  of  a  trade  is.  AUl  moic  doubtful,  and  I  decline  at  prelent  giving. 
aay  opinion  upon  it. 

But  as  to  all  other  kinds  of  debt  which  may  be  the  fubjeds  of  claim,  it  does  not 
feem  to  mcto  ad-riit  of  a  doubt,  that  intereft,  during  the  war,  cannot  rightfully  be, 
awarded.     It  is  already  {hewn  that  intereft,  in  cafes  of  every  other  defcription  than  ■ 
thofe  juft  enumerated,  being  in  the  nature  oi  damages,  can  ow/y  accrue  on  the  default  ■ 

of  the  party It  cannot  be  pretended  tloat  there  is  a  default,  where,  from  circum- . 

itances  beyond  the  coniroul  of  the  party,  payment  is>  rendered  impradicable  :— Ncr, 
can  it  be  denied  that  a  (tate  of  tvar  between  the  nations  of  the  creditor  and  debtor 
\^fuch  a  circumjlance.  This  is  a  pofition  altogether  independent  of  any  fuppofed 
diftinJlion  grounded  on  the  nature  of  the  war  between  the  United  States  and  Great 
Britain,  as  different  from  ordinary  wars,  which  has  been  contended  for  in  the  an-, 
fwer,  and  fo  elaborately  combated  in  the  refojution  ;  and.  it  is  equally  uninfluenced 
by  any  confiuerations  deduced  from  the  merits  (  '  the.  con te ft,  or  from  the  Icgifla-, 
tive  ads- pafied  on  the  on o  fide  or  the  others  I  agree,  that  in  executing  a  treaty,, 
defigned  to  terminate  differences  between  the  nations,  "  in  fuch  a  manner  as. 
•*  without  reference  to  the  merits  of  their  refpefti.t  complaints  and  pretenfions^ 
'*  may  be  beft  calculated  to  produce  mutual  fat^isfadtion  and  good.upderftanding," 
thefe  confiderations,  on  either  lide,  are  irrelevant  and  improper  : — But  it  is  zneceffa-^ 
ry  incident  of  all  nxxarsy  to  intQrdicfb-and  cut  off  all  comraunicatiqn  between  the  indi-, 
vjduals  of  the  hoflile  nations  ;  and  this  \s,.  completely  effec1:ed  without  any  prohibitory, 
laws  on  either  fide.  It  is  of  no  import,  therefore,  what  thofe  laws  were,  or  en 
which  fide  aggrefTion  commenced — it  is  fufficient  to  the  purpofe  that  the  nations 
were  at  open  war,  and  that  their  people  refpeiflively  could  not  lawfully  have  inter-. 
courfe  with  each  other.  From  this  ftate  of  things  it  is  inevitably  refulted,  that  the 
debtor  was  prevented  by  the  intervention  of  a  circumftancq,  not  attributable  to  hin% 
as  fault  or  laches,  from  compliance  with  his  contract ;  and  that  if  thereby  the  cre- 
ditor has  fuftained  a  lofs  it  is  damnum  abfque  injurtay  and  he  is  not  entit,l,:d  to  re? 
paration  in  damages  from  tlie  debtor. 

If  this  obvious  inference  from  undeniable  principles  could  need  any  confirmation* 
it  is  to  be  exprefsly  found  in  the  letter  from  Mr.  Hammond  ta  the  fecretary  of 
State,  complaining  of  infradions  of  the  treaty  of  peace  by  the  United  States  : — 
On  this  very  fubje«jt  of  intereft  during  the  war,  he  thus  writes,  «  In  one  State 
««  ( Maffachufetts  Bay)  where  great  property  was  at  ftake,  jujlice  has  been  liberally 
♦'  difpenfed,  and,  notwithftanding  a  particular  regulation  of  the  State  warranted 
**  the  dedu(aion  of  that  portion  of  the  intereft  on  the  Britifh  debts  which  accrued 

"  during 


(     39    ) 

«  during  tlie  war,  the  courts,  in  conformity  to  the  plain  terms  of  the  treaty^  have 
♦'admitted  and  direded  the  quantum  of  the  demand  to  be  regulated  by  the  original 
«'  contract  and  where  the  contratl  bore  interej,  or  the  cujom  of  the  trade jujifed  the 
«  charge  the  full  intereft  has  been  allowed  to  Britifli  creditors,  notwithftanding  th^ 
*'  intervention  of  war  :"" — This  is  conceived  to  be  a  formal  and  exprefs  admilfion, 
on  the  part  of  the  Britifh  government,  that  the  payment  of  intereft  during  the 
war,  in  cafes  "  where  the  contraft  bore  intereft,  or  the  cuftom  of  the  trade  jui'ified 
««  the  charge,  was  all  that  was  required  by  '♦  the  plain  terms  of  the  treaty  of  peace" 
and  that  in  cafes  of  every  other  defcription,  there  cannot  be  a  reafoiiable  pre- 
tence to  claim  or  demand  it. 

In  truth,  the  books  of  authority  on  natural  and  civil  law,  as  well  as  on  the  laws 
of  England,  leave  no- room  for  doubt  on  the  fubjea :— A  few,  and  but  a  few,  are 
here  cited. 

«  All  the  forts  o(  reparation  of  damage  zre  reduced  to  two  kinds  ;  one  of  which 
*'  is  barely  called  intereft — and  the^ther  cofts  and  damages." 

I  Do.  Tib.  ^.  tit.  5. 
2  Tr.  Eg.  lib.  5.  ch.  I.  J.  I. 

**  Jnterefi  is  the  reparation  of  damages  which  is  due  from  debtors  who  owe  Tarns 
"  of  money,  and  who  fail  in  tlie  payment  thereof." 

I  Ih.lib.$.  tit.  ,^.  §  I. 

«  Debtors  incur  the  penalty  of  intereft  by  their  delay  to  pay  what  they  owe, 
««  according  as  the  faid  delay  may  be  imputed  to  them,  and  may  have  that  efFefl,  which 
*'  depends  on  the  nature  of  the  credits  and  the  circumftances.  Ibid. 

«'  In  cafe  of  accidents  which  happen  without  any  fault  of  the  party,  he  will  not 
«  be  liable  to  reparation  of  damages,  by  the  rule  that  nobody  is  to  anfwer  for  acci- 
««  dents,  except  there  be  fome  fault  on  their  part." 

1  Do.  ubi.fup. 

2  Tr.  Eq-  Lib. ^  ch.l.  §  I, 

"  By  damage  we  underftand  any  lofs  or  diminution  of  what  is  a  man's  own,  oc- 
«  cafioned  by  the/at*// of  another  :— And  by  a  fault  we  underftand  every  unlaivfut 

ad  or  omiflion."  ^    ,     ,  r 

I  Ruth.  c6.  ij.  §  1. 

If  a  misfortune  has  happened  without  the  fault  of  either  party,  **  there^Is  no 
*'  reafon  to  throw  off  the  lofs  from  one  innocent  man  to  another  innocent  man  ;'* — In 

fuch  cafe  potior  ejl  conditio  defendentis, 

3 -Sarr.  1357. 

"  Damages 


:*i: 


(     40     ) 

«  Damages  are  in  l\\c  pcuuf  of  the  court,  and  therefore  they  ufually  order  thftn 
<«  as  they  fee  convenient."     a  Tr.  Eq.  Lib.  5.  ch.  1.  §  S'      '^'^^  "^^"^  ^"^^  ''^    ' 
illuftrzitc  this  pofition  are  all  of  interfjl. 

«'  The  inrtances  in  which  the  court  has  exercifed  its  difcretion,  in  allowing  a 
«'  grea.er  or  Icfs  rate  of  intereft,  are  too  many  and  variouG  to  allow  of  cnuinera- 

"  tion."  „. ,  . 

Ibicl  in  nolu. 

«  It  would  be  unreafonable  that  thofe  things  which  are  inevitable,  which  no  in- 
««  duftry  can  avoid,  no  policy  prevent,  (hould  be  conilrued  to  the  prejudice  oj  auy 

"  perfon  in  whom  there  is  no  laches."  „        ^  r 

'■    •'  I  Poivsll  en  Cont.,  44O . 

Th^re  might  be  added  a  great  many  more  authorities  of  the  moft  unequivocal 
in      -t ;  but  thefe  are  deemed  fuflicient  to  prove  what  has  been  advanced. 

od  Th-  claim  in  which  this  refolutlon  is  offered,  is  a  mod  unfortunate  one  for 
the  eftablilhment  of  an  affirmative  rule  on  the  allowance  of  intereft  durwg  the  ivar, 
or  even  for  any  period  whatever. 

Trom  all   that  yet  appears,  and  fo  far  as   a  judgment  miiy  be  formed  from  the 
cbira  and  fchedules  which  accompany  it,  there  is  not  a  fingle  item  which  can  be 
faid  to  come  within  that  clafs  of  contradls,  that  carry  intereft  of  the  firft  defcnption    • 
I  have  mentioned  ;  that  is,   where  the  intereil  is  a  part  of  the  Mt,  cither  by  the 
terms  of  the  contrails  or  even  by  the  ufage  of  trade 

The  it-ms  are  principally  of  accounts  which  have  been  incurred  in  the  courfe  of  4 
r^tail  dealings  in  the  State  of  Virginia ;  and  which,  fo  far  from  being  entitled  to  . 
intereft  during  the  war,  are  not,  either  by  the  law  of  England  or  America,  entitled 
10  'ntereft  at  all  as  a  matter  of  courfe  :— And  e^cn  if  it  Ihould  be  denied,  that  the 
intervention  of  war  is  an  excufe  for  the  debtor,  it  cannot  furely  be  pretended  that 
it  gives  to  the  creditor  an  accumulative  right  which  he  would  not  other wiie  have 
polfcfled. 

It  is  aflumed  in  theanfwer  on  the  part  of  the  United  States,  that  debts  of  this 
defcription  have  at  no  time  carried  intereft  in  Virginia  ;  and  the  contrary  has  not 
been  ailertcd  either  in  the  claim  or  reply. 

And  the  acknowledged  do^rinc  of  the  law  of  England  muft,  on  every  prin- 
ciple of  mutualit; ,  preclude  aU  demand  of  intereft  mfuch  cafes. 

It  is  a  general  rule  of  the  Englilh  law,  as  well  as  of  the  civil  law,  that  Intereft 
fball  not  be  allowed  on  pr<ji:s ;  and  the  reafon  alTigned  is,  that  as  mtereft^  ftr^iflly 


(  41  ) 

fpeaking,  is  Itfelf  t  •■  c  profu  to  which  a  man  is  entitled  for  the.  ufe  of  his  money, 
fothe  right  is  fati  ivd  if  that  profit  is  obtained  in  another  way,  in  which  cafe  the 
profit  is  in  lieu  of  intereft-^thus,  intered,  except  in  very  fpccial  cafes,  rtiall  not 
be  allowed  on  in/ire/' : — Nor  on  rents  which  are  i\\c  profits  of  land  that  repref.'nts 
money  : — Nor  on  arrearages  of  annuities^  which  are  compounded  of  principal  and 
the  intereft  or  profit — nor  on  goods  fold  and  delivered^  the  profit  oa  which  is  equi- 
valent to  the  intereft  on  the  capital  employed  in  the  trade. 

But  whatever  may  be  the  reafon,  it  is  mod  clearly  fettled  by  numerous  decifion?, 
both  at  law  and  in  equity,  i\\ztfimplecontraBsy  and  debts  on  open  accounts^  and  for 
goods  fo/d and  delivered,  do  not,  of  courfe,  carry  intereH: : — And  ^his  has,  fo  late 
as  in  1793,  been  folemnly  determined  by  the  prefent  lord  chancellor,  even  where 
the  amount  has  been  afccrtained  by  the  mafter's  report,  in  the  cafe  of  Creuze  v. 
Loiut/j,  4  Br.  Cb.  Rep.  317.  Reported  alfo  in  2  Vefey,  junior,  157,  under  the 
tiile  of  Creuze  v.  Hunter — which  cafe  was  decreed  after  a  careful  revifion  of  the 
rules  and  pradice  of  the  court  in  former  cafes. 

The  opinion  of  the  preceding  lord  chancellor,  in  the  cafe  of  Eoddam  v.  Riley\ 
1  Br.  Ch.  Rep.  3,  and  which  I  tranfcrihe  here  becaufe  it  is  conchifive  on  mort  of 
thefe  items,  (hews  alfo,  that  they  deri\  e  no  additional  title  to  intereft  from  the 
mere  circumftance  of  their  being  due  on  balnnces  : — He  fays, 

"  The  cafes  cited  apply  only  where  there  are  accounts  regularly  ftate-d  between 
"  the  parties,  in  which  cafe  there  is  an  implied  contrad  on  the  part  of  the  debtor 
"  to  pay  ;  and  all  contrads  to  pay,  undoubtedly  give  a  right  to  intereft  from  the 
««  time  when  the  principal  ought  to  be  paid  : — But  this  is  not  fo  here  : — It  is  true, 
"  the  fum  claimed  does,  in  fad,  appear  to  be  due,  on  a  balance,  at  the  clofe  of 
«  the  account ;  but  there  was  no  fettlement,  or  acknowledgment  by  the  debtor, 
"  which  raifes  a  contrad  to  pay,  and  which  is  the  only  ground  upon  which  intereft 
««  is  given,  i  IVms.  653,  for  according  to  the  argument  of  the  exceptant,  that 
«  whatever  appears  to  be  due  on  the  balance  of  an  account  ftiall  carry  intereft,  the 
«  rule  muft  go  to  every  debt  for  goods  fold  and  delivered,  which  certainly  is  not  the 
*'  law  of  this  country.** 

There  are  unqueftionably,  many  qualifications  and  exceptions  to  this  rule  relative 
to  intereft  on  fimple  contrad  debts,  as  well  as  to  the  rules  relative  to  every  other 
defcription  of  debts  : — But  it  is  not  neceflary  to  advert  to  thefe  exceptions  in  an 
argument  of  this  general  nature,  efpecially  as  they  are  not  ftated  to  apply  to  any 
part  of  this  cafe  : — Thefe  exceptions  however  prove  how  impradicable  it  is  to 
arrive  at  any  general  refult  on  a  fubjed,  which  is  Uable  to  fuch  an  infinite  variety 
of  modifications,  and  how  improper  it  is,  that  any  refolution  fhould  precede  the 
proof  of  the  merits  and  circumftances  of  the  particular  cafe  in  which  intereft  is 
demanded. 

F  It 


(     4»     ) 

It  would  be  eafy  to  adduce  numberlcfj  other  proofs  and  Hluaratlons  in  fupport 
of  the  principles  herein  advanced:— And  alfo  to  lay  down  many  other  pofmons 
aff-aiae  the  claim  of  interell,  in  whole  or  in  part,  in  various  cafes  fubmitted  to  the 
decifion  of  the  Board  :— I  have  purpofcly  avoided  this  fort  of  anticipation,  and 
hive  endeavored  to  be  as  brief  as  poOible  ;  becaufe,  as  I  dilapprove  altogether  of 
thefe  premature  and  argumentative  refplutions,  it  is  proper  that  I  fnould  conform 
my  praftjce  to  this  fentiment,  ?,s  far  as  the  courfe  which  has  been  purfued.will 
permit    for  th«  explanation  and  viadication  of  my  own  opinions. 


S.:  SITGREAVES, 


(Signed) 

Sipiemler  19,  179^. 

Mf.  FitzsiMONS  read  a  minute  of  his  diffent,  which  is  as  follows: — 

1  defirc  to  ent^r  my  difTent  to  the  refolution  paffed  by  the  Board  on  the  1 8th 
ui(t.  in  this  cafe,  on'the.  fubjed  of  intercltduring  the ,  war—for  th^  following 
reafons  :-— 

Becaufe,  the  debts  which  are  the  fubjea  of  the  refolution,  were  payable  in  the 
'hen  colonjec  now  United  States  :  And  it  is  admitted  by  the  creditors,  that  tor 
a  condderable  period  there  were  no  perfons  in  .the  United  Statcis  authorized  to 
receive  thcfe  debts : — 

It  therefore  appears  to  me  to  be -highly  unraafonable,  that  a  debtor  fiiould  be 
m:ide  fiibjea  to  the  payment  of  intereft  on  a  debt,  which  the  abfence  of  the,  cre- 
ditor rendered  it  impoffibie  for  him  to  difcharge  :— 

Becaufe,  at  the  clofe  of  the  war,  when  all  its  efFefls  were  ftrongly  imprefled 
ipon  the  minds  of  the  creditors,  an  abatement  of  inteieft  for  that  penod  was 
generally  allowed,  and  fettlements  to  a  very  great  amount  have  fince  been  made 
'.vith  that  allowance. 

Judgments  of  courts,  vcrdids  of  juries,  and  .awards  of  rcferrces,  have  almoft 

•niverlally  been  made  upon  the  fame  principle,  which  proves  irrefifhbly  the  general 

opinions  of  its  equity  by  people  perfectly  well  informed  of  all  the  circumlUnces  of 

the  cafe  ;  nor  ought  their  opinions  to  be  (haken  by  a  decifion  given  at  a  time  when 

many  of  the  circumllances  which  influenced  them  ipuft  have  loft  their  efFe^.    . 


(Sisned) 


THOMAS  FITZSIMONS. 


The  faid  minutes  of  diffent  having  been  read,  the  Board  RESOLVED— That 

In  dccidin?  acainft  an  objection. to  the.  payment  of  intereft  during  the  wat»  mam- 

"  tained 


(43     ) 

tairied  generally  and  without  regard  to  the  nature  and  import  of  the  contra^?!, 
exprefs  or  implied.  They  do  not  preclude,  but  neceflarily  fave  all  objeftions  to 
the  payment  of  intereft  which  may  arife  out  of  the  contract,  or  other  fpecial  cir- 
cumftances  of  the  cafe. 

-  Ex  traded  from  the  proceedings  of  the  Board. 

G.  EVANS,  Sbcretarv. 


CoWMISSlOIiERS*  OrFics, 

Phtladelphlat  iSth  Dec.  1798. 


Ri 


'  Present,  as  befoks. 


-ESOLVED — ^That  the  Board  will  receive  fuch  evidence  only  to 
prove  the  debts  which  are  the  fubjeds  of  claim  befoie  them,  as  would  have  been 
competent  and  admiffible  to  prove  the  fame  immediately  previous  to  the  operation 
of  lawful  impediments  in  the  courts  of  the  States  where  the  debtors  at  that  time 
refpedlively  refided,  unlefs  upon  fpecial  caufe  firfi:  fliewn,  and  an  order  of  the 
Board  for  the  admiffion  of  evidence  of  any  other  defcription. 

ExtraSed  from  the  proceedings  of  the  Board. 

G.  EVANS,  SECRETARy. 


Commissioners*  Office, 
Philadelphia^  iBth  Dec.  1798. 


O, 


l^RESENT,    AS   SEFORS. 


'RDERED — That  the  general  agent  for  claimants  and  agent  for  the 
United  States  refpeftively  furnifli  the  commiffioners  with  copies  of  all  papers  laid 
before  the  Board,  whether  averments  for  evidence,  or  other  reprefentations,  or 
ftatements  containing  incidental  objections,  or  queftions  fov  their  confideration. 

Extradcd  from,  the  proceedings  of  the  Board. 

G.  EVANS,  SECRETARy. 

Commissioners* 


(     44     ) 


Commissioners*  Office, 

PhUadelflnai  Stb  Jan,  1799. 


Present,  .'j  .';sfor£. 

CyRDERED—That  the  general,  agent  for  claimants  do  immediately  lay 
before  the  Board,  fuch  powers  of  attorney  or  other  authorities  by  virtue  of  which 
claims  have  been  prefented  or  profecuted  as  are  In  his  pofleffion  :  And  renewed 
the  general  order  of  the  fifth  December  laft  with  this  intimation,  that  the  faid  general 
order,  if  not  obeyed  withiaa  reafonable  time  will  be  enforced  by  a  refolution,  that 
all  claims  not  fupported  by  the  produdlon  of  titles  and  authorities  to  profecute  the 
fame,  within  a  certain  term  to  be  therein  prefcribed,  fliall  on  that  account  be  dlf- 

raifled. 

Extraded  from  fbe  proceedii  '^s  of  the  Board, 

G.  EVANS,  Secretary, 


1  Commissioners'  Officej 

zs,d  Oaober,  1798. 

A  RESOLUTION  on  the  fubjedl  of  the  proteft  in  the  cafe  oi  Dulany, 
and  diffent  in  the  cafe  of  Cunningham  &  co.  propoied  for  the  decifion  of  the  Board 
on  a  future  day,  was  read. 


Commissioners'  Office, 

Wth  January,  1 799. 

Present,  as  beiore. 


IntheCaJeo/DAmEL  Dulany. 


T^ 


1  HE  refolution  on  the.fubjeaof  theprotefl:  and  diflent  therein  mentioned, 
laid  before  the  Board  on  the  Z3dday  of  Odober  lalt  for  their  decifion  on  a  future 
day,  was  now  (purfuant  to  intimation  given  on  Tuefday  laft)  again  moved  for 

that 


(    45     ) 

that  parpofe  ;  the  member  who  made  the  motion  o'oferving  tliat  th?  proceedings  in 
queftion,  which  ftand  recorded  in  the  minutes  of  the  Board,  and  m'jic  by  fpocial 
order  communicated  to  the  agents,  had  become  matter  of  very  general  notoriety, 
and  could  not  fail,  from  the  imputations  and  luggcftions  they  contained,  to  produce 
inipreflions  unfavorable  to  that  confidence  which  ought,  in  juftice  and  expediency, 
to  be  repofed  in  the  principles  of  men,  who  are  charged  v/ith  tiis  impartial  dutits 
of  arbitrators  by  treaty  between  two  friendly  nations  : — He  t!>ercfore  hoped  that 
the  animadveriion  necelTarily,  and  with  reluiHiancc,  conveyed  by  the  rcfi>lution, 
would  never  be  afcribed  to  any  perfonal  feeling  on  the  fubjed.  It  cannot  bf  for- 
gotten that  much  remonftrance  and  expoftulation  were  employed  in  vain  to  prevent 
all  occafion  for  any  fach  refolution  ;  and  fufficient  time  has  elapfed  (from  the 
occurrence  of  circumftances)  to  prove  the  deliberate  conviftion  on  wliich  the  motion 
proceeds.  The  mafs  of  b'ufinefs  now  at  length  brought  before  the  Board  will 
demand  a  fteady  courfe  of  uninterrupted  proceeding  ;  and  amid(t  the  variety  of 
cafes  which  maft  occur,  either  in  the  eftablilhment  and  application  of  general  prin- 
ciple, or  the  inveftigation  of  faft,  it  is  impolnole  to  expecft  that  unanimity  will  in 
every  inftance  obtain ;  even  with  the  bell  diipofition  in  the  members  of  the  Board  to 
refrain  from  all  frivolous  difTention  or  immaterial  controverfy.  The  obje<ft  of  the, 
refolution  ought  therefore  to  be  well  underflood  ;  and  as  it  may  corret^t  mifippre- 
henfions,  of  no  convenient  tendency,  fo  it  cannot  pofiibly  be  produiftivc  of  Ixtd 
confequence — for  the  public  profeflion  of  principles  of  condud  which  ought  to 
give  fatisfaftion  to  all  parties,  will  not  at  leall  weaken  the  influence  of  fuch  princi- 
ples on  thofe  who  profefs  them. 

The  refolution  proj-ofed  was  as  follows  : 

The  Board,,  confidering  hew  much  it  imports  tl\e  riglit  and  decorous  exercjfe 
of  the  powers  and  duties  with  which  they  are  charged,  that  thofe  powers  and 
d,uties  {houJd  not  be  faffered  to,  remain  the  fubje(ft  of  queflion  or  difpute,  in  mat-' 
ters  eflential.to  the  exiftence  of  all  ceicainty  and  order  in  the  courfe  of  their  pro- 
ceedings : — And  in  particular  confidering  that,  by  the  terms  and  tenor  of  the 
proted  which  was  entered  •\gainii:  the  refolution  of  the  Board  in  the  cafe  of  Duhviy, 
dated  the  8th  day  of  Augafl:  laft,  and  the  minute  of  diflent  of  the  fame  date,  in 
the  cafe  of  Cunn'mgfmm  and  Company,  certain  qucftions  of  order  have  been  raifed, 
which  it,  therefr^'  behoves,  them  finally  to  fettle  and  decide,  RESOLVED  as 
foHows,  viz. 

That  by  the  faid  proteft  it  is  cither  exprefsly  or  in  efFe£l  aflerted  and  main- 
tained, that  any  one  or  more  of  the  commifiioners  differing  in  opinion  from  the 
majority  prefent,  hdve.  a  right  to  be  abfent,  or  to  withdraw  from,  and  thereby  to 
prevent  the  meeting,  or  caufe  the  diffolution  of  the  Board,  for  the  purpofe  of 
preventing  the  paffing  of  any  propofed  order,  refolution,  or  av/ard  which  may 
then  be  under  difcuffion  ;  and  that  the  previous  declaration  of  a  commiffioncr  that; 
he  would  not  "  give  courvtenance"  to  the  paffing  ora  propofecl  refoJution,  as  being 

"  mau'if.Jlj 


(     46     ) 

"  maniffjlly  unjujly'*  but  ftiould  "withdraw  to  prevent  it,  entitles  him  to  be  confi- 
dcrcd  as  having  a(51ualiy  fo  withdrawn,  and  as  being  abfent  from  the  Board  "  to 
"  that  purpofcy"  io  that  "  It  becomes  Ins  duty  to  protcit  againft  the  validity  of  fuch 
«<  rcfolution  as  not  having  pafTed  the  Board,"  notwidiftanding  his  having  remained, 
and  been  pcrfonally  prefent  in  his  place,  when  fuch  refolution  was  parted,  by  the 
afient  and  with  the  concurrence  of  all  the  other  commiflloners  prefent.  That 
further  by  the  faid  proteft  it  is  formally  and  officially  declared,  and  entered  on  the 
minutes  of  the  Board,  as  the  opinion  of  o«<?  commifiloner,  that  a  rcfolution  which 
after  long  and  mature  delibeiation  had  been  agreed  to,  and  on  fpecial  grounds  and 
reafons  therein  fet  forth,  determined  to  be  juft  by  three  commiflioners,  being  all 
the  other  coramiffioners  (including  Hie  fifth  commifTioner)  then  prefent,  was  not 
only  unjuft,  but  "  manlfejlly  unjuft  ;'" — And  the  injuftice  being  thus  declared  to  be 
manifell,  or  palpable  on  the  face  of  the  refolution,  no  reafon  whatever  is  afligned 
in  fupport  of  tlie  charge. 

That  the  concluding  paragraph  of  the  diiTent,  in  the  cafe  of  CunmngJmm  and 
company,  which  is  in  thefe  words,  viz :  "  That  the  decifion  of  a  queftion  of  this 
•*  importance  at  a  time  nvhen  only  one  of  the  commjjjtoners  appmnted  by  *he  United 
"  States  was  prefentf  will  certainly  not  contribute  to  render  it  more  acceptable,* 
contains,  in  fubftance,  the  two  following  fuggeftions  :  Firjl,  that  no  matter  of 
importance  ought  to  be  decided  in  the  abfence  of  one  of  the  commiflioners  named 
on  either  fide,  unlefs  the  decifion  propofed  by  a  majority  of  the  Board  be  favor- 
able to  the  fide  on  the  part  of  which  fuch  abfent  commiflioner  was  named  : — And 
faondlyy  that  the  queftion,  hew  far  the  proceedings  of  the  Board,  or  the  refult 
of  any  of  their  deliberation  may  or  may  not  be  "  acceptable*'  to  thofe  concerned, 
is  a  fit  fubjeft  for  their  ojjicial  confideration  and  regard : — 

That  the  feverai  matters  above  ftated,  as  cantalned,  6r  fuggefted  by  the  faid 
proteft  and  diffent,  are  inconfift^nt  in  themfelves,  without  foundation  in  the  6th 
article  of  the  treaty,  and  repugnant  to  thofe  principles  of  impartiality  and  independ- 
ence, on  which  alone  tlie  Board  will  ever  fuffer  themfelves  to  proceed,  or  the  faid 
article  can  be  executed ; — 

ift.  Becattfe  the  right  affumed  In  the  proteft  is  a  right  of  refufmg  to  difch^rge 
the  duties  which  every  commiihoner  by  the  faid  article  of  the  treaty  is  fiDCcially 
«  required"  and  by  the  oath  thereby  prefcribed,  has  folemnly  promifed  to difcharge. 
By  the  faid  article  the  commifFu)  .rs  «*  are  empowered  and  required,  in  purfuance 
«*  of  the  true  intent  and  meaning  of  the  article,  to  take  into  their  confideration  all 
claims,  and  to  determine  the  fame  refpeftively,  according  to  the  merits  of  the  feverai 
cafes,  due  regard  being  had  to  all  thecircumftances  theret)f  and  as  equity  and 
juftice  fhall  appear  to  them  to  require."  and  by  the  Oath  thereby  prescribed  every 
commiffioner  has  fworn,  "  that  he  will  honeftly,  diligently^  impartially,  and  care- 
fully examine,  and  to  the  bejl  of  his  judgment,  according  to  juftice  and  equity,  decide 
*«  all  fuch  complaints,  as  under  the  faid  article  Jhall  be  preferred  to  the  faid  com^ 

"  miflioners:" 


(( 


(( 


<( 


(     47     ) 

"  Tniflioners  :*' — But  as  by  the  cxprefs  provifion  of  the  article  there  can  be  no 
official  deliberation,  cxaniination  or  dccifion  of  claims  without  the  conftitution  of 
a  Board,  by  the  attendance  of  "  one  of  the  commiflloners  named  on  each  fide,  and 
"  the  fifth  commilTioner,"  the  refuial  of  a  commiiTioner  to  attend,  or  his  with- 
drawing for  the  purpofe  of  preventing  the  formation  of,  or  diflblving  a  Board,  would 
evidently  be  in  effect  a  refufal  •«  diligently  to  examine,  and  to  the  bcft  of  his  judg- 
"  ment  to  decide"  fuch  complaints,  purfuant  to  the  treaty,  and  to  the  oath  which 
fuch  commiflloner  had  taken. 

2d.  Be<aufe  the  treaty  having  provided  that  the  aft  of  the  majority  ftiall  be 
the  a<ft  of  the  Board,  fuch  aft  cannot  be  impaired  in  its  operation  or  cfftft  by  the 
difTent  of  the  minority.  But  according  to  the  right  afllimed  in  the  protell,  there 
could  be  no  -certainty  without  unanimity  :  Every  deliberation  might  be  defeated, 
and  all  decifion  prevented,  by  the  feceflion  of  the  minority,  who  would  therefore  fo 
hr  pofiefs  the  abfolute  controul  of  the  Board. 

3d.  Becaufe  if  ever  it  could  become  '<  the  duty**  of  a  commiflioner  in  any  cnfc 
to  withdraw,  fo  as  to  prevent  a  decifion,  on  account  of  his  holding  a  different  opi- 
nion from  the  majority  prefent,  it  would  be  his  duty  fo  to  do  in  eviry  fuch  cafe,  with- 
out exception  : — And  thus  the  neceflary  exercife  of  a  duty,  under  the  faid  article 
of  the  treaty,  would  in  every  fuch  cafe  necefTarily  prevent  its  execution. 

4th.  Becaufe  the  provifion  that  a  Board  cannot  be  formed  without  the  prefcnce 
of  "  one  of  the. commiffioners  named  on  each  fide  and  the  ah  commiilloner," 
afFgrds  no  rational  ground  for  the  inference,  that  therefore  every  fuch  commiflioner 
has  a  right,  by  non-attendance,  to  prevent  a  Board  from  being  formed,  or  when 
formed,  by  feceflion  to  diflblve  it.  Death,  ficknefs,  or  other  accidents  may  prevent 
the  formation  of  a  Board  j  but  it  were  prepofterous  to  conceive  that  the  article,  in 
providing  for  its  execution,  intended  to  authorize  a  luilful  abfencc,  for  the  very  pur- 
pofe of  defeating  wh^t  it  profeffed  to  fecur^;. 

5th.  Becaufe  the  diftinftion  which  has  been  made  between  corporeal  and  official 
prefence,  or  prefence  to  one  purpofe  and  not  to  another,  has,  at  leaft,  nothing  to 
iupport  it  in  any  part  of  the  treaty,  and  cannot.be  confidered  as  rational  in  itfelf. 
It  would  at  bert.  be  a  refinement  of  little  utility  ;  for  the  contrivance  of  TiJiBhims 
ahfence  is  not  neceffary  for  the  purpcxfe  of  reconciling  the  aftual  prefence  of  a  mem- 
ber with  his  previous  declaration  of  an  intention  to  withdraw.  It  were  more 
natural,  and  not  lefs  confident,  to  fay,  that  after  declaring  an  intention,  he  refrained, 
on  better  refleftion,  from  carrying  fuch  intention  into  execution.  The  faa  in  the 
prefent  inftance,  that  the  member  protefting  was  prefent  in  his  place,  with  all  his 
faculties  about  him,  when  the  refolution  againft  which  he  protef^  was  pafTed,  can 
never  be  fhaken  by  words  ;  and  the  condition  of  the  article  is  fully  fatisfied,  in  fub- 
fbnce  as  well  as  in  terms,  if  the  members  thereby  required,  in  fufficicnt  capacity  to 
deliberate^  difeufs  ^nd  decide,  are  aftiiaUy  prefent. 

^th. 


(     4«     ) 

fill,  Becauf.  the  official  publication  on  record,  of  the  opinion  of  one  com- 
miffioner.  S  a  rcfolution  deliberately  confidcred  and  agreed  to  by  three  bq.3 
a  the  oh  members  of  the  Board  for  reafons  therein  fpeaalyfet  forth,  wa. 
"  fo  rS/runja(l''  as  not  to  be  entitled  to  -  //..  countenance-  ot  his  Iq^port,  c^ 
on  r  ^li4d  I  part,  by  tl,e  ^,refun.ption,  that  the  true  meaning  ^^-V-^ 
operation  of  the  terms  made  ut  of  have  not  been  underftood  :-Foi  u  thout 
adve.ting  to  the  importance  of  one  withholding  his  «  countenance  from  the 
•oint  and  dchberate  Ix  of  tL,re,  injuftice  to  be  "  ...j/e/^'  -  ,^'\-f^V°  ^^  ; 
.able  on  the  face  of  the  a^,  muft  of  necefTity  be  »"^^"  -"^' '  ^"j./^  '^^^^^^ 
forth'  in  fupport  of  it,  mere  artifice  and  pretext  j-contrary  to  oath,  honour,  and 

reputation. 

And  in  regard  to  the  fuggeftions  above  dated,  as  contained  in  the  dllTent  in  the 
cafe  of  Cunningham  and  company  : 

7th      Becanfe  'he  firft  of  thofe  fuggeftions  reprehends  what  the  6th  article  of 
the   riatv  eTp/efsly  direds.     It  is  thereby  declared,  that  «  three  ot  the  commif- 
«  VonerJflXonfHtute  a  Board  ;  and  Hilu  have  power  to  do  any  ^a  ain^e^^^^^ 
«  to  the  faid  commiffion,  provided,  that  o«.  of  the  commiffioners  named 
«  fide,  and  the  fifth  commiffioner  (hall  be  prefent.  and  all  decifion    "^^  ^e  made 
«  by  the  majority  of  the  voices  of  the  commifiioners  then  prefent.        1^^'^  ^he  lug 
ncftion  declares  that  three  members,  as  tlierein  defcnbed,  ousl,  not  to  fcjrn   a  Boa  d 
fo     he  decifion  of  any  important  matter,  the  prefence  of  one  of  the  faid  commi  - 
rlers  on      ch  fide  not  being  in  propriety  fufficient  for  that  purpofe  ;  from  v^hich 
kruldneTefraly  follow,  that  the  decifion  of  a  queftion  of  importance,  however 
elaborafelv  it  mayl-ive  been  argued  or  maturely  confidered.  and  however  clearly  a 
maior  t^o^^       the  five  commiffitners  may  have  formed  and  declared  their  concur- 
"nee  i'n  opin  on,  ought,  notwithftandin^,  to  be  kept  back  and  -thhe  d  fi.m  the 
mrtTes    and  all  concerned  in  cafes  of  the  fame  nature  and  import,  becaufe  one  com- 
So  ^r  d2nts, Tnd  the  other  eommiffioner  named  on  the  fimie  fie  e  whofe  prefenco 
S^^e  tr^ty  doe    not  require  is  abfent ;  the  attending  and  diffenting  cominiffioner 
havirrmoreoverample  means  of  information,  and  conftant  opportunityof  Ringing 
Lrward  in  fupport  If  his  diffent.  every  aid  which  fueh  information  can  afford  or 
the  beft  abilities  fuRgeft :  The  Board  cannot  but  withhold  their  fanftion  from  fuch 
;'  pofitns  :-^^^  have  fufHciently  proved,  by  the  -^ole  courfe  of  d^^^^^^ 

condua  during  the  ficknefs  of  one  of  the  comm.ffioners,  named  on  the  part  of  the 
United  States.^or  many  months,  and  as  long  as  the  ftate  of  ^he  bufinefs  before  thm 
and  other  circumftances.  could  juUify  a  delay  of  important  determinations,  that 
they  are  little  difpofed  to  be  precipitate  in  any  of  their  proceedings. 

And  laftly.    Becaufe  the  fecond  fuggeftion  above  ftated  as  ^°"f /"f/^  ^"  ^^^^f^^ 
diffent,  viz.  That  the  Board  are  officially  to  confider  how  fiir  their  proceedings 
n  ay  b    <^acceptal>le  "  to  thofe  concerned,  would  add  a  duty  to  their  taflc  which  he 
ueJty  has  not  impofed.     They  are  not  to  court  favour,  but  to  do  juftice;  nm  to 


'{    49    ) 

confult  the  wi'flics,  but  to 'decide  upon  the  rights  of  parties.  The  objea  of  their 
funftions  neither  requires,  nor  can  admit  of  management  or  addrcfs.  They  haVe 
engaged,  as  they  (hall  anfwer  to  their  own  confcicnces,  that  their  principle's  fhall 
be  pure,  their  dilig«nce  exa^,  and  their  deliberations  fuitablc  to  the  fubjcd. 
Within  the  fcope  of  their  office  they  can  have  no  other  care;  and  arc  entitlecf, 
without  folicitude,  to  expedl,  that  whatfoever  they  determine  to  be  ju(l,  will  be 
"  acceptable.'*^ 

The  faid  refolution  having  been  read,  Mr.   Sitgrkavks  moved  the  following 
rcfolution,  and  was  feconded  by  Mr.  Fitzsimoto  : 

The  refolution  heretofore  prelented  for  con fideration  on  the  fubjed  of  the  diffem 

in  Cunningham's  cafe,  and  the  protefl  in  Dulany's  cafe,  being  moved  this  day  for 

decifion,  the  commiflioners  named  on  the  part  of  the  United  States  moved,  that  it 

^be  refolved,  that  it  is  inexpedient  that  any  queftion   be  taken  upon  the  propofed 

refolution.  ' 


•     The  queftion  having- been  put  upon  the  faid  motion,  the  fame  was  negatived  bv 
■«he  Boar4. 

'It  was  then  propofed  to  put  the'-tfueftion  on  the  principal  refolutibn,  when  Mr. 
Fi TZ SIMONS  read  the  following  paper : 

The-commi!llfoi!(irsfratTiid  onthe  part  of  the  United  States,  fincerely  defirous 
ofexecuting  with  juftice  and  Impartiality  and  in  a  manner  conformable  to  the  moft 
liberal  principles  of  equity  and  good  faith,  the  important  duties  affigned  to  them  by 
the  treaty  of  amity  : — And  folicitous  that  every  thing  fliould  be  avoided  in  the 
proceedings  of  the  Board,  incompatible  with  that  harmony  and  moderation,  and 
hat  mutual  deference  and  reJ^eft  which  ought  to.prevail  among  perfons  engaged  in 
the  acHuftment  of  national  differences,  have  obferved  with  great  concern  and  regret, 
the  refolutioDS  jiropofed  by  Mr.  Macdokald  on  the  23d  of  Odlober,  for  fubfequent 
difcuffion  and  decifion  by  the  Board,  in  relation  to  the  proteft  in  the  cafe  oiDulany, 
and  the  diflent  in  the  cafe  of  Cunningham  and  co.  and  they  had  hoped  that  on  more 
mature  refledion,  a  fenfe  of  propriety  and  decorum,  and  a  defire  to  conduft  the 
bufinefs  of  the  commiffion  to  an  iflue  honorable  and  fatisfadory  to  all  parties,  would 
eventually  have  prevented  a  perfeverance  in  propofitions  not  neceflarily  or  eflentially 
connedled  with  the  duties  prefcribed  by  the  treaty. 

Beir^  /rtunately  difappointed  in  this  hope,  and  finding  that  it  is  intended  to 
infift  upon  a  difcufEon  and  decifion  of  the  propofitions  referred  to,  they  owe  it  to 
the  individual  member  whofe  a<5ts  are  the  fubjefts  of  thofe  refolutibns,  to  their  own 
charafter,  and  to  the  honor  of  their  nation,  to  prevent,  by  the  only  method  in 
their  power,  a  proceeding  not  juftified  by  the  authorities  vefted  in  the  Board,  inju- 
rious in  its  form,  exceptionable  in  its  fubftance,  and  in  its  confequences  deftru(ftive 
of*he  means,  by  Vhich  alone  the  objefts  of  the  commiffion  can  be  honorably  or 
impartially  efFefted. 

<5  They 


(     50     ) 

They  deem  It  to  bo  indiriJUtaLly  true,  that  neither  ttio  t.-rnib  nor  the  C\m\t  of  the 
fixth  iirticle  of  the  treaty  of  amity,  give  any  authority  to  the  Board  to  fit  in  judgment 
on  tlic  a(5ls  of  its  nnembcrs,  or  to  hmit  or  i^>rcfcribe  the  fevcral  cxercife  oi'  thiiir  indi- 
vidual duties,  and  tliey  cannot  by  any  indireijl  or  impHcd  acquiefceocc  confcnt, 
that  the  Board  ftiail  denounce  with  its  cenfures,.  that  exercife  oiinUiyidaal  difcre- 
tion  and  opinion  which  is  beyond  its  controiJ;  orby  afluraing  this  power  of  ceniuvc. 
in  any  degree  affctft  or  abridge  the  pcrfefl  freedom  and  independence  of  individual 
fentiment  and  conduft.     Much  lefs  can  they  confent  to  propofitions,  which  be/ides 
the  defcdt  of  authority  already  fnggettcd,  arc  highly  orftcnGve  in  their. tarns,  and 
which  direiftly  and  unequivocally  rcile*^  on  the  integrity  of  one  of  the  commiiTioners^ 
on  the  part  of  the  United  States.     They  cannot  conient  even  to  the  difcuffion  of 
Aich  propofitions  ;  fur  merely  to  difctifsthem  would  be,  in  a  great  degree,  to  fuffev 
U»e  indignity,  aad  to  partake  of  the  mdccoruip. 

The  conMnifiioners  named  on  the  part  of  the  United  States,  therefore,  with  much 
icgrct  for  the  occalion,  but  with  the  moil  perfect  convi«5tion  of  their  duty,  are 
compelled  to  withdraw  from  the  Board  for  the  re.dbns  ftated  :  But  they  exprefsly 
declare,  that  they  are  fincerely  difpofed  to  proceed  with  the  utmoll  diligence  and 
fidelity  in  the  proper  bufmefs  of  the  commifTion,  and  are  ready  and  v«lling  to  con- 
ftitutc  the  Board  at  all  times,  for  the  purpofo  of  examining  and  deciding  fuch  claims 
as  have  been  or  Ihall  be  duly  preferred,  and  are  fubmitted  to  itaiiccilioB  under. the 
tif.uy  of  amity,  commerce  ana  navigation.. 

THOM.'VS  FITZSIMONS. 
a.  SITGREAVJIS. 

?/fr.  FiTZsrMONs  awdMr.  Sitcueaves  ilf«i  withdrew* 

BatraHed  from  theprdcvetUiigi^fthe  £oapd»> 


0«taMtssTO  Horn's  ^ 


(    5»     ) 


Commissioners'  OfficEi 

\^lh  Februaty,  1799. 


pRHSEMTi 

v>.  MACDONALD, 
M;.  RICH, 
Mr.  FITZSIMONS, 
Mr.  SITGREAVES, 
Mr.  GUILLEMARD. 


In  the  Cafe  of  the  Right  Rev,  Charles  Inglis. 

The  following  Tcfolutlon  having  been  the  fubje(5l  of  full  difcufTion  in  the  Boai<i 
during  feveral  fittings,  Mr.  Macdonald  with  the  concurrence  of  Mr.  Rich 
and  Mr.  Guillemard,  moved  that'the  fame  fliouId.be  pafled. 

rvESOLVED — That  the  perfonal  incapacity  "to  fue  and  recover  in  the 
courts,  under  the  4th  article  of  the  treaty  of  peace,  arifing  from  the  defcription  and 
chara(5ler  afcribed  to  the  claimant,  as  maintained  (with  reference  to  authority)  on 
the  part  of  the  United  States,  and  from  the  aft  of  attainder  and  confifcation  before 
ftated,  by  which  attainder  the  claiinaitt  "  loft  all  civil  and  political  relation  to  the 
**  State  r  the  total  extin(!lif)n  of  his  right  to  the  debts  in  queftion,  nbtwithftanding 
the  treaty  of  peace,  by  virtue  of  the  faid  lA  of  confifcatlony  and  other  afts  and  pro< 
ceedlngs  purfuant  thereto,  as  declared  by  the  concurring  decifions  of  courts  of  com- 
petent jurifdiftion  before  the  treaty  of  amity  ;  and  particularly  as  declared,  (relped- 
ingthe  conclufive  effe*?:.?  ol  conffcation  againft  the  right  of  the  original  creditor)  by 
the  unanimous  opinion  of  the  judges  o^  \.ht  fuprcme  court  o(  thr  TTnitcd  States  in 
Feb.  1794,  delivered  by  chief  jumce  Jay,  in  the  cafe  of  Georgia  agoinjl  B.ailsford 
and  others,  before  recited,  agreeably  to  the  ftatement  of  the  law  which  has  been  laid 
before  the  Board  on  the  part  of  the  United  States,  in  the  manner  before  mentioned  ; 
and  the  general  courfe  of  judicial  pra^ice  in  deduQin^  interejly  as  before  referred  to, 
nuere  lanvful  impediments y  operating  againfl  the  recovery  of  tlie  debts  due  to  the  claim- 
ant, within  the  meanin-^  of  the  treaty  of  amity,  at  the  date  of  the  fiiid  treaty  ;  "  fb 
"  that  by  the  ordinary  courfe  of  judicial  proceedings,  the  claimant  could  not  then 
"  obtain,  and  actually  have  and  receive,  full  and  adequate  compenfation  for  the  lofs 
*'  and  d;image  which  he  had  tliereby  fuftained:" — That  the  lofs  ftated  to  have  arifcn 
from  tJie  operation  of  the  faid  lawful  impediments,  was  not  occafioned  by  "  the  ma- 

««  nifefl; 


t  p-  y 


"  nifeft  delay,  negligence,  or  wilful  omiflion"  of  the  claimant ;  for  no  duty  of  dili- 
gence could  demand  the  profecution  of  expenfive  proceedings  at  law,  on  the  furmife 
of  a  chance,  in  oppodtion  to  legiflative  aifts,  the  uniform  decifions  of  competent 
courts,  and  the  eftablifhed  courfe  of  judicial  pradice  ;  nor  can  the  claimant  be  held 
to  have  known,  that  what  the  courts  had, determined  to  be  law  was  not  law ;  that 
bound  and  authorized  as  they  were  to  apply  the  conftitution,  their  decifions  were 
againft  the  conftitution,  and  therefore  void  ;  and  that  what  they  had  adjudged  noi  to 
be  within  the  treaty  of  peace,  was  neverthelefs  within  the  treaty,  and  would  be  ju- 
ilicially  fo  coiifidere'd  if  again  tried: — That,  (howeverunneceflary  the  enquiry  may 
be  ill  the  prefent  cafe,  fupported  as  it  is  by  fufficient  evidence  of  the  law,  as  it  refpe(5ts 
the  claimant  at  and  before  the  conclufion  of  the  treaty  of  amity)  it  does  not  appear 
that  any  decifion  ''  any  court  within  the  United  States,  has  fince  been  given,  in- 
confiftent  with  the  decillons  already  referred  to  ;  for  the  cafe  of  Hamilton  againft 
Ealon,  decided  in  the  circuit  court  for  North  Carolina  diftridl,  in  June  1 796,  was 
a  cafe  of  confifcation  afFedting  perfons  in  the  peculiar  utuation  defcribed  in  the 
pleadings,  undei'  the  operation  of  anacft  of  the  State  of  North  Carolina,  parted  ia 
April  1777,  whereby  it  was  among  other  things  enaded,  "  that  all  perfons  being 
"  fubjeds  of  the  States  and  then  living  therein,  or  who  (hould  thereafter  come  to 
"  live  therein,  who  had  traded  immediately  to  Great  Britain  or  Ireland,  within  ten. 
"  years  then  laft  paft,  in  their  own  right,  or  ailed  as  fadlors,^  ftore-keepers  or 
•'  agents  there,  or  in  any  of  the  United  States  of  Anierica,  for  merchants  redding 
♦*  in  Great  Britain  or  Ireland,  (hould  take  an  oath  of  abjuration  or  allegiance,  or 
"  depart  the  State;"  and  notwithftanding  the  general  grounds  and  principles  adopted 
by  the  judges,  individually,  in  declaring  their  opinions  in  that  cafe,  the  judgment 
(which  though- not  in  the  laft  refort,  was  a  binding  precedent  as  far  as  it  went)  was, 
no  precedent  beyond  the  cafe  defcribed  in  the  pleadings,  and- which  isftated  in  the 
paflage  referred  toon  the  part  of  the  United  States,  in  the  opinion,  then  delivered 
by  chief  ju/lice  Elfworth ;  the  faid  paflage  being  in  the  following  words,  viz  ;  "  To 
bring  it  within  ^he  article,  it  is  alfo  requifite,  that  the  debtor  and  creditor  (hould, 
havehcen  on  di^erent  Jides,  with  reference  to  the  parties  to  the  treaty,  and  as. 
the  defendant  was  confefledly  a  ciilzen  of  the  United  States,  it  muft  appear 
that  the  plaintiffs  were  fuljehs  of  the  King  of  Great  Britain,  and  it  is  pretty 
clear  from  the  pleadings  and  the  laws  of  the  State,  that  they  were  fo.  It  is 
true  that  on  the  4th  of  July  1776,  when  North  Carolina  became  an  inde- 
pendent State  that  they  were  inhabitants  thereof,  though  natives  of  Great 
Britain,  and  they  might  have  been  claimed  and  holden  as  citizens,  whatever 
were  their  fentiments  and  inclinations.  But  the  State  afterivards  in  1777, 
liberally  gave  them  with  others  fimilarly  circumftanced,  the  option  of  taking 
an  oath  of  allegiance,  or  of  departing  the  State,  under  a  prohibition  to  return, 
'*  with  the  indulgence  of  a  time  to  fell  their  eftates  and  colkft  and  remove  their 
"  efFe(5ts — They  chofe  the  latter^  and  ever  after  have  adhered  to  the  King  of 
"  Great  Britain,  and  muft  therefore  be  regarded  as  on  the  Britifh  fide  :'* 
From  which  the  neceflary  inference  is,  that  if  the  plaintiffs  in  that  cafe  had  not, 
b?en  within  the  defcriptiott  and  operation  of  the  JTaid  a(St  of  North  Carolina,  they 

would 


i< 


« 

41 
« 
(I 
« 
« 


« 


('    53'    ) 

•would  not,  in  the  opinion  of  the  faid  learned  judge,  have  been  entitled"  to' 
recover  :— And  in  the  c/e  of  IVarre,  executor  of  Jones,  plaintiff  in  error  againft' 
Hyhon,  decided  in  the  fupreme  court  of  the  United  States  in  February  1796,  re- 
verfing  the  judgment  of  the  circuit  court  for  the  diftrid  of  Virginia,  in  February 
1793,  *^^  ^^  of  aflembly  dated  in  the  plea  on  which  the  judgment  was  founded, 
and  payment  had  been  made  into  the  loan-office  of  the  State,  was  in  exprefs  terms 
declared  to  be  no  more  than  an  a<5t  of fequejlration ;  as  appears  from  the  recital  alrea- 
dy given,  and  the  fubfequent  aft  of  cotififcation  pafled  in  the  faid  State,  referring 
loihe  f did  former  aB  as  an  aSl  of feqiieflratmt  only,  alfo  before  recited: — And  there- 
fore whatever  may  have  been  the  extent  of  general  reafoning,  adopted  by  fome  of 
the  judges  who  concurred  in  the  faid  decifion  of  the  fupreme  court,  againrt  the 
j^ldgment  of  the  circuit  court,  that  decifion  was  confined  to  fequejlration,  and  left 
the  law  on  the  conclufive  efFed  of  eonffcaUon  againfl:  the  right  of  the  original  cre- 
ditor, as  it  flood  on  former  deeillons  ofcompetent  courts  and  had  been  folemnly  and 
unanimoufly  declared  by  the  judges  of  the  faid  fupreme  court,  in  the  cafe  of  Georgia 
againfl:  Bratlsford,  particularly  above  recited  and  referred  to  : — But  if  it  were  true 
that,  after  i\iQ  treaty  of  amity,  which  made  no  change  upon  the  law,  butfecured 
to  certain  creditors^  the  benefit  of  an  arbitration,  and  of  relief  from  the  United 
States,  wherever  they  could  not  then  recover  in  the  ordinary  courfe  of  judicial  pro- 
ceedings, decifions  had  been  given,  in  diredland  manifeft  contradidion  to  what  had 
been  folemnly,  and  even  in  the  laft  refort  declared  to  be  the  law,  before  the  faid 
treaty  ;  fuch  fubfequent  decifions  would  not  affeft  the  claimant's  right  to  a  remedy 
before  the  Board,  unlefs  it  could  fuccefsfuUy  be  maintained  that  his  condudt  was  to 
be  eflimated,  not  by  ev-ents  then  pafl  or  prefent,  but  by  fubfequent  events ;  that 
(according  ta  an  argument  which  has  been  held)  decifions  in  the  year  one  thoufand 
feven  huhdred and  ninety-fix,  were  by  a  technical  retro-adion  of  their  efFeft,  to  be 
confidercd  by  the- Board,  as  information  of  the  law  in  the  year  one  thoufand  feven 
hundred  and  ninety fotlr,  ftftd  fuch  information  as  to  fubjeft  the  claimant  to  the^br- 
feitiireof  his  rights  for  culpable  negligence,  in  not  having  adted  then  according  to 
the  knowledge  he  thus  after<wards  received  : — Or,  that  in  determining  whether  a 
claimant  is  entitled  to  pioceed  before  the  Board,  for  want  of  remedy  in  the  ordinary 
courfe  of  judicial  proceedings,  the  laji  decifion  whenfoever  it  may  be  given,  ox  the  lajl 
alteration  of  circumjlances  in  thefituation  of  debtors  whenfoever  it  may  happen,  muft 
be  the  rule  :  And  if  the  right  to  a  remedy  before  the  Board,  did  not  by  the  treaty 
attach,  according  to  the  flate  of  things  at  or  preceding  the  conclufion  thereof,  as 
the  period  to  which  all  evidence  on  that  head  was  to  relate,  and  from  wliich,  as  a 
fixed  and  fettled  point  of  departure,  the  Board  were  to  proceed,  fuch  muft  be  the 
rule,  with' all  its  confequences  of  uncertainty,  confufion,  and  incalculable  delay: 
— Nor  could  it  ever  be  faid  that  the  jurifdi6lion  of  the  Board,  flilfting  with  every 
occurrence,  had  efficient  operation  upon  a  fingle  cafe  till  the  very  moment  of  a  final 
award  ;  for  at  any  one  period  of  the  difcuflion,  the  following  might  be  the  terms  of 
a  re}.refentation  on  the  part  of  the  United  States. — "  The  proceedings  before  the 
♦*  Board  muft  in  this  cafe  ceafe,  as  a  remedy  may  noiv  be  obtained  in  the  ordinary 
"  courfe  of  juftice;    it  is  true  that  the  debt  appears  to  be  juft,  that  the  debtor 

"  was.'.' 


tl 
(( 
<e 
it 


(( 
(( 


(     54     ) 

««  was  folvent  at  ihe  peace,  and  that  he  became  infolvent  during  tiie  operation  of 
«  lawful  impediments;  but  he  is  now  again  folv$nt ;    it  is  true,  that  under  the 
«*  flieher  of  luch  impediments  he  abfconded  with  allluseffeas,  left  the  law  fhould 
«  change  its  courfe,  and  compel  him  to  do  juftice,  but  he  is  now  difcovered,  or 
♦«  foraeof  his  cffeds  are  to  be  found  in  different  States,  or frauduknt  conveyances 
«  may  be  detcdled  and  fet  afide  in  chancery,  and  a  recovery  thus  obtained  ;  it  is 
«  true  that  the  courts  were  (liut,  or  that  decifions  were  given  agamft  the  creditor 
«  in  cafes  precifely  fimiiar,  but  the  courts  axe  now  open,  and  decifions  have>« 
«'  been  given  in  favor  of  fuch  rights :"— While  the  following  might  at  fome  future 
period,  before  the  final  breaking  up  of  the  Board,  be  the  terms  of  reprefentation  on 
the  part  of  the  creditor  :  "  The  remedy  before  the  Board  was  formerly  ftoppedrfi 
its  courfe  by  the  then  recent  Iblvency,  or  difcovery  of  the  debtor  or  of  his  effeas, 
and  by  a  change  of  decifion  at  law  :  but  now  again  it  is  reftored  by  the  infolvency 
which  has  fince  occurred  of  the  fame  debtor,  his  having  again  difappeared,  or 
-•  Uie  courfe  of  judicial  opinion  and  praftice  having  returned  to  its  former  channel ; 
—or  it  might  be  faid,  "  the  creditor  has  fince  gone  through  the  whole  courfe  of 
«*  law  and  legal  remedy  in  vain,  and  now  again  appears  before  the  Board,  to  claim 
compenfation  for  all  that  he  has  fuffered,  including  the  lofs  which  has  been  incur- 
-  red  through  the  coftly  experiments  he  has  made  :'»— And  thus,  as  every  tribunal 
of  iuftice,  ordinary  or  extraordinary,  by  arbitration  or  at  law,  mujl  afford fxtfficteni 
time  and  opportunity  for  fubftantiatiog,  by  the  bed  evidence  of  which  the  cafe  is 
capable,  fuch  averments,  as  according  to  the  i^iocipks  by  which  they^are  governed, 
are  material  and  relevant,  it  never  could  be  known  when  the  courfe  of  htigation 
and  of  legal  execution  would  terminate  ;  for  the  period  muft  for  ever  recede  from 
thp  purfuit,  and  elude  the  hope  of  promifed  fatisfadion  ;  whik  under  the  operation 
of  a  treaty  of  «w/<y  between  the  two  nations,  Britrfo  fulijemy  claiming  an  exemption 
from  the  operation  of  general  law,  would  be  placed  in  array  againft  American  citizens 
in  all  the  tedious  and  litigious  hoiUiity  of  aaions  at  kw,  faits  in  chancery,  and  writs 
of  execution  ;  the  Board  in  the  mean  time,  either  employing  itfelf  in  the  mveftiga- 
tion  of  fads  (on  the  ftatement  of  cu-ctumftasces,  the  nature  and  variety  of  which 
may  be  conceived  from  the  x^kxtnct  in  one  Jingle  cafno-^\\\k  of  debtors  amountmg 
tofeveralthoufands  in  number)  the  whole  of  which  inveftigation  might  be  rendered 
of  no  avail  by  fuch  fuggeftions  as  thofe  which  have  been  ftated  j  or  fitting  inadivc 
for  years,  till  the  refult  of  various  experiments  enabled  them  to  proceed  in  eftimat- 
ina  partial  recoveries,  afcertaining  and  deduding  cofts  of  litigation,  ftriking  balances, 
awarding  compenfation    for   deficiencies,    and   (under  a   condition    winch    was 
IHpulated  by  the  treaty,  for  the  purpofe  of  enaWing  the  United  States  to  avail 
themfelvcs  of  fuch  changes  as  might  occur  in  favor  of  judicial  recovery)  dtreSlwg 
^wmnents  to  the  United  States,  after  it  had  been  proved  by  actual  proceedings 
through  the  whole  compafs  of  legal  poflibility,  that  all  recovery  of  the  debt  lo 
affigncd  was  Impraaicable  ;— confequenccs  which  would  inevitably  follow  from  the 
pofition,  that  the  queftion  of  legal  remedy  may  depend  upon  future  €vent3.--Bui 
whatever  might  be  the  conduA  of  the   Board,  whether  they  adad  confiitertly, 
and  iccoildlng  to  rule,  in  yielding  to  fuch  coftfequenceg,  or  difafpbirited  the  api)ii- 

cation 


(     55     ; 

cation  <^i'  their  own  prmciples  by  the  irreguhr  cKorcife  of  a  loole  and  arbitrary 
difcretion,  every  (rxpofitian  of  the  treaty  W^/VA  "j^ould  in  any  (fibres  "Marram  fush 
confcquences  mujl  be  erroneous  :  That  thertefore  ths  cxpcrimcnti  v.liich  have  been 
Tuggertedand  propofed  on  the  part  of  the  United  wStates,  as  (liU  necelfary  (before 
the  Board  can  proceed  in  this  <»f  -fimiiar  cafcs)  to  be  tried  by  judicial  proceedings, 
for  the  purpofe  of  afcertaining,  whether  the  courts  v.ill  now  determine  to  be  law,* 
that  which  was  h^ld  not  to  be  law  at  tlie  date  of  the  treaty  of  :imity,  and  fct  afldc 
the  operation  of  2  legiflative  ad?  and  dccillons  before  Ihited  ;  fo  as  to  afford,  if 
not  complete,  at  leaft  a  partial  fatisfadion  for  the  lofs  fuftained,  would  in  all 
refpcas  counteraa  the  whole  tenor  and  intent  of  the  fixth  article  of  the  faid  treaty, 
Nvhich  regarded  the  (late  of  things  at  the  })eriod  of  its  conclufion,  and  by  which  a 
right  to  '^  full  and  adequate"  compenfation  from  the  United  States,  was  completely 
verted  in  thofe  individuals  zvhofe  cafes  ivire  then  within  the.  defcnpt'ion  ti  corHaintd ; 
a  right  nop  contingent  or  fluduating  on  future  circumftances,  butperfe^  and  entire; 
to  be  carried  into  effea,  not  according  to  the  precarious  refult  of  different  experi-- 
mental  proceedings,  in  their  nature  dilatory,  and  tending  from  tjie  cofls  of  litiga- 
tion, and  the  protradmn  of  difpute,  to  an  iiicFcafe  of  the  evil  j  but  by  one  fimplc 
and  definitive  courfe  of  remedy,  prefcribed  jointly  by  tlie  two  nations,  in  the 
fpirit  of  frlendiliip  and  peace,  for  the  purpofe  of  ipcedily  putting  an  end  to  the 
Wily  remaining  caufc  of  irritatioa  and  difcontent.;  and  to  be  ejicluftvely  adminif- 
tered  by  arbitrators  whom  they  have  mutually  cUoTen,  and  invsiied  with  ample 
j^wers  for  tha;t  wife  ^d^iicabk  purpofe, . 


CJiMMTSSIONERs'  OfFICE, 

.-u^tvau  v>.AL  -u  .  .o\....  Ph'ladelphm,  2^  March,  x  799. 

Present, 

Mr.  MACDONAti:), 
Me.  rich, 

Mr.  SITGREAVES, 

Mr.  OyH.fEMARD. 

In  the  Cafe  jo/  HiAumjR^i  and  oikerSy  Emcutors  of 

Mary  Hanbury. 

\jRrDER)ED*-^niallhe  general  ngent  for  claima.ns  make  up  and  lay 
before  the  Board  "an  account  of  the  principal  fum  and  intercfl  claimed  in  this  cafe; 
apd  that  the  agent  for  the  United  States  prepare  and  Jay  before  the  Board,  a  draught- 

'of 


o 


(     5<5    ) 

•  jof  an  afTignment  of  the  debt  in  queftion  to  the  United  States,  to  be  fettled  and 
direfted  by  the  Board  purfuant  to  the  treaty;  and  that  the  faid  account  and  draught 
.  refpedtively  be  laid  before  the  Board  within  eight  days. 

Ex*raBed from  the  proceedings  of  the  Boar(l. 

O.  EVANS,  Secritart.  : 


IntheCafe  oftiAiiBVKY's  Executors. 


A 


STATEMENT  of  the  debt  in  this  cafe  having  been  prefented  by  the 
general  agent  for  claimants  to  the  Board,  and  by  their  order  of  the  24th  ultimo, 
leave  having  been  given  to  the  agent  for  the  United  States- to  fee  andmake  objec- 
tions to  the  fame  if  any  he  had  within  eight  days  In  purfuance  of  the  leave 
given  by  that  order,  the  agent  for  the  United  States  objedls  to  the  ftatement  of  the 
debt  exhibited  by  the  general  agent,  in  as  much  as  that  ftatement  is  unprecedented 
in  the  courts  of  England  as  well  as  America,  whether  of  law  or  of  equity  and  is 
unjuft. 

The  ftatement  is  as  follows : 

Dr.  The  Utlted  States  to  the  Executors  of  Mary  Hanhury. 

Sterling, 
1793.  £.     s,     d. 

Dec.  ai.  To  the  penalty  of  Stephen  "Weft's  bond,  dated  2 lit 
Dec.  '773,  payable  with  intereft  from  date,  the 
faid  intereft  at  5  per  cent,  having  equalled  the  con- 
dition in  twenty  years,     -    -     -     -    -     -    -    -      74c     o     o 

1799.  ,  '    '  1''U     ■'      , 

March  ^l.     1 0  five  years  three  months  intereft  on  740I.    -    -    .      194    5    o 


v.\ 


Additional  intertft  on  740!.  flsrling  until  award,-  '--  "^^  9^ ^  5    o 

(Errors  excepted.) 

WILLIAM  MOORE  SMITH, 

\  iu  I ' !  General  agent,  ■ 

■      This 


(     57 


I'hls  ftiiicmcnt  of  the  general  agent  is  formed,  by  adding  tlie  iiitcrcft  to  the  prln* 
-ipa!  at  the  expiration  of  twenty  yeais  from  tlic  date  of  the  bond  by  wiiich  time 
the  arr.ount  exprefl'ed  in  the  condition  and  the  intciell  on  that  luni  becomes  equal 
to  the  penaky.  The  penahy  is  then  coiifdcred  as  the  debt  due  to  the  claimant, 
and  on  uhich  intercit  is  calculated  to  the  time  of  the  award. 

It  is  a  fettled  rule  in  the  courts  of  equity  in  England,  that  intercft  cannot  be 
calculated  beyond  the  penalty  of  a  bond.  So  late  as  1792  the  rule  was  confirmed 
by  Lord  Thuilow  on  exceptions  to  a  nuflcr's  report  in  two  cafes.  TVw,  vcrfus 
ihc  Earl  'J  IVin.'erton,  and  Kti'ighl,  'vsrfus  ]\bLean,  3  Brown,  Chan.  Rep.  4B9. 
496.  As  thefe  are  the  lafl  cafj-;  in  the  equity  courts  of  England  on  the  fubjeifi-, 
and  as  the  c.ifcs  which  hadj)rcceded  thefe  are  well  examined  in  the  arguments  of 
counfel,  the  agtnt  for  the  United  States  will  do  no  more  than  refer  the  Board  to 
them  taking  it  for  granted  that  the  rule  is  now  fettled. in  cliancery  on  tiiis  fubicct. 

Ihe  agent  for-  the  United  States  acknowledges,  th.Lt  a  different  prlriciple  pre- 
vails in  the  courts  of  common  law.  There  the  penalty  of  a  bond  is  merely  a 
lecurity,  and  where  it  is  not  fufficient  the  plaintiff  may  recover  damages  as  wcH 
as  the  penalty.  Bat  t'l  ^fe  damages  arc  interelt  on  the  fum  in  the  condition  of  th. 
hond,  not  formed  from  a  calculation  of  interell  on  the  penalty.  In  Elliot,  verfus 
Davis,  Bunb.  23,  intered  was  decreed  to  be  paid  though  it  exceeded  the  penalty. 
In  Lord  Lonfdnle  and  others,  "vcrfus  Church,  the  court  were  of  opinion  that 
diUH'agcs  for  more  than  the  amount  of  the  penalty  may  be  recovered.  Thefe  cafts 
at  lazVi  fliew  that  interelt  may  be  recovered  beyond  the  penalty  of  a  bond  ;  but 
the  intereft  fo  reco^ertd  beyond  the  penalty,  is  interefl:  on  the  principal  fum  ex^ 
prefied  m  the  condilion  of  the  bond,  and  not  interefl  upon  a  new  cajatal,  compounded 
of  the  old  capital,  and  intereft  thereupon  tx)  a  certain  day  as  the  creditor  fliall  at 
his  mere  pkafure  determine. 

According  to  the  civil  law,  intereft  upon  intereft  is  not  allowed.  "  Whatever 
"  dela,y  there  may  be  on  the  part  of  the  debtor  to  pay  the  intereft  and  v/hat- 
'*  ever  may  be  the  caufe  of  it,  he  is  never  bound  to  pay  fecond  intereft  for 
*'  the  interefl  which  he  owes.  And  the  creditor  cannot  accumulate  the  arrears 
"  of  intereft  with  the  princijxil  fum  in  order  to  make  the  whole  a  capital  which 
'*  may  produce  iutereft  ;  but  the  fame  will  be  reduced  to  the  amount  of  the  princi- 
"  pal  fum  which  is  capable  of  producing  intereft."     ift  Domat.  399. 

The  agent  for  the  United  States  does  not  confider  it  neceflary  at  this  time  to 
urge  further  reafons  to  the  Board  in  iupport  of  his  objee*lions  to  the  ftatement 
of  this  debt  on  behalf  of  the  claimants.  The  ftatement  he  feels  confident  will  not 
be  received  by  the  Board  in  as  much  as  it  is  not  authorized  by  the  rules  of  the 
common  law,  and  is  repugnant  to  thofe  principles  of  equity  and  juftice  which  muft 
govern  the  Board  in  their  determination  on  claims. 

JOHN  READ,  JuN. 

^d  May,  1799.  ^getit  general  of  the  United  Stales, 


.*:  m. 


H 


In 


(     5'-     ) 


In  the  Cafe  ^Hanbury's  Executors, 


J\S  tlie  Board  in  rendering  their  awards  will  certainly  decide  as  equity 
and  juftice  fliall  appear  to  them  to  require,  the  agent  for  the  claimants  will  make 
no  obfervations  upon  the  cafes  referred  to  in  the  remarks  upon  the  calculations  of 
intereft  in  this  cafe.  Their  confciences  being  fatisfied  from  the  merits  and  circum- 
flance  of  any  particular  cafe,  that  even  compound  intereft  is  not  too  large  a  meafure 
of  damages,  they  have  a  right  to  award  it,  and  no  rules  of  courts  in  either  country 
are  to  be  abfolute  and  binding  upon  them  ;  nor  can  the  cafe  of  creditors  voluntarily 
delaying  any  demand  for  a  great  number  of  years  be  applicable  to  the  cafe  of  per- 
fons  prevented  from  recovery  by  the  laws  of  the  debtor's  country,  kept  in  force  con- 
trary to  pofitive  ftipulation. 

There  are  two  other  modes  of  calculation  : 

1  ft.   Simple  intereft  on  the  condition  from  the  date  to  the  award. 

2d.  Simple  intereft  on  the  condition  from  date  to  the  judgment,  and  then  inte- 
reft on  that  fum  for  which  judgment  ought  to  have  been  rendered. 

Intereft  is  univerfally  allowed  on  judgments. 

The  general  agent  for  claimants  is  ready  to  make  a  calculation  on  any  principle 
adopted  by  the  Board,  to  which  the  claimants  are  bound  to  fubmit. 


WILLIAM  MOORE  SMITH. 


jot/}  May,  1799. 


Com 


MISSIONERS 


{    so    ) 


Commissioners'  Office, 

Philadelphia,  10//1  May,   1799. 


Present, 

Mr.  MACDONALD, 
Mr.  RICH, 
Mr.  FITZ SIMONS, 
Mr.  SITGREAVES, 
Mr.  GUILLEMARD. 


In  the  Cafe  of  Hanbury  and  al.  Executors  of 

Mary  Hanbury. 

r 

i.  H  E  refolution  a^-l  order  formerly  propofed  on  the  refufal  of  the  agent  for 
the  United  States  under  M.c  direaion  of  the  attorney  general  to  comply  with  the 
urder  of  the  Board  in  th:  cafe  of  the  26th  day  of  March  lall,  having  been  moved 
by  Mr.  Macdonald,  with  the  concurrence  of  Mr.  Rich  and  Mr.  Guillemard. 

Mr.  SiTGREAVES  movcd  that  the  following  be  fubftituted  in  lieu  thereof: 

The  Board  having  confidered  their  order  in  this  cafe  of  the  26th  day  of  March 
hi\y  and  the  reprefentation  of  the  agent  for  the  United  States  thereon  dated  on 
the  tith  and  read  on  the  12th  ultimo,  together  with  the  letters  from  the  attorney 
general  of  the  United  States  to  the  faid  agent  accompanying  the  Hiid  reprefentation. 

ORDERED — That  the  faid  reprefentation  and  the  letters  accompanying  the 
fame  be  entered  at  length  on  the  minutes. 

ORDERED — That  the  general  agent  for  claimants  do  ])rcparc  and  lay 
before  tho  Board,  the  draught  of  a  releafe  or  aflignment  to  the  United  States  to  be 
fettled  and  direded  by  the  Board  purfuant  to  the  treaty. 

And  the  qucftion  :  ring  been  put  on  Mr.  Sitgreaves'  motion,  and  Mr. 
FnzsiMONs  and  Sitgreaves  only,  having  voted  for  the  fame,  the  faid  motion 
was  negatived. —Whereupon  the  quefHon  having  been  put  on  Mr.  Macdonald's 
motion  that  the  refolution  and  order  propofed  by  him  fhould  be  paffed— -the  fame 
was  pafled  as  follows : — viz. 

Mr. 


jSo 


"' Mr.  FiTzsiMONS  and  Mr.  Sitgreaves  diflunting. 

The  Board  having  confidcred  their  order,  in  this  cafe,  of  the  26\h.  d^y  of  Maffl 
Kta,  whereby  it  was  ordered  that  the  general  agent  for  claimants,  flioiild  make  up 
and  lay   before   the  Board  an  account  of  the  principal  ium  and  intcrefl  claimed, 
whicli  has   been  done  accordingly  :'  And  the  treaty  having  provided  in  favour  cf 
the  United  States  that  the  fum  awarded  (hould  be  paid  on  condition  of  their 
receiving  fuch  a  releafe  or  aflignment  as  the   Board  (hould  direJt  ;  it  was  alfo  or- 
dered for  the  purpofe  of  enabling  them  to  carry  the  faid  provifion  into  efFeclin  th.: 
manner  bed  calculated  to  prevent  all  difpute  or  objeaions  to  the  form  and  agreeably 
to  the  general  praflice  in  bufinefs,  that  the  draught  of  an  aflignment  to  the  United 
States,  fliould  be  prepared  by  their  own  agent.     And  having  alfo  confidcred  the 
reprclentation  of  the  agent  for  the  United  States  dated  on  the  i  ith  and  read  en  the 
12th  day  of  Ajiril  lalt,  not  applying  for  any  review  or  alteration  of  the  faid  order,, 
but  dircdly  and  peremptorily  in  the  (irll:  indance    refufmg   to  comply  with  the 
fame,  which    rcprtientation    is    in  the  following  terms : — "  The  agent  for    the 
<«  United  States  not  confidering  it  as  part  of  his  ofBcial  duty  to  prepare  draughts  of 
*«  affignments,  which  when  complete  and  approved  of  by  the  Board,  were  to  enti- 
«  tie  creditors  to  the  benefit  of  awards  made  in  their  favour,  fubmitted  that  order 
"  to  the  attorney  general  of  the  United  States  for  his  opinion  and  diredions.   Thofe 
«<  diredions  the  agent  for  the  United  States  has  (ince  received  which   exprefsly  re- 
«<  quire  him  not  to  prepare  for  the  creditors  the  draui^hts  of  the  alignments  they  are 
««  execute,  the  fame  bcipig  no  part  of  his  otVicial  duty.    The  agent  for  the  United 
'■'  Slates  accompanies  this  note  with  copies  of  two  letters  from  the  attorney  genera], 
"  which  contain  the  agent's  direflions  and  the  reafons  which  influenced  them." 
And  which  direftions  and  reafons  are  ilated  in  the  faid  letters  from  the  attorney 
general  as  follows  :— "  Being  perfuaded  that  it  is  not  your  official  duty  to  perform 
"  this  a(fl  and  more  cfpecially  that  a  jujl  regard  to  the  intereft  of  the  United  States 
"  requires  you  to  adopt  a  proper  rule  of  conduift  to  be  obferved  in  all  inflances  of 
"  this  kind,  I  think  it  nccefTary  to  fay  that  you  are  not  lotind  to  comfy  ivltb  the 
'  ".  order^  to  which  1  have  referred,  or  in  any  other  cafe  that  at  prefent  occurs  to 
"  my  mind,  to  prepare  an  indrument  of  aflignment,  and  that  you  ou^^ht  not  to  do  it. 
"  Since  the  claimant  is  to  give  the  releafe  or  aflignment  he  is  bound  to  prepare  the 
'*  draught  and  to  lay  it  before  the  Board  for  their  approbation ;  after  this  is  done  it 
"  the  Board  before  they  decide  upon  the  draught  choofe  to  fubmit  it  to  your  confi- 
*  deration  for  the  purpofe  of /fwuw/'w^  if  any  reafunable  oljeilion  can  be  made  to  it, 
it  will  be  your  duty  then  to  examine  it,  and  to  make  known  your  obje(5tions  it 
any  you  fliall  have."     I  am  fully  convinced  that  the  Board  cannot  Impofe  this 
duty  of  nfcrivener  of  a^ign^ents  on  any  officer  of  the  United  States  who  derives 
his  authority  not  from  the  Board  oi  the  treaty,  but  from  the  prefident.     In  the 
treaty  (he  United  States  have  not  undertaken  to  draw  the  affignments  to  be 
given  by  the  creditors  or  claimants  and  it  does  not  comport  with  my  ideas  of  the 
honor  of  the  United  States  to  admit  that  the  Board  may  order  an  officer  of  the 
United  States  to  perform  a  fervice,  which  on  their  part  has  never  been  ftipulated 


to 


(    ^»    } 

"  to  be  perfomicd  by  them,  nor  da  I  cnnce'roc  that  it  <will  conduce  to  the  int.rcjl  cj 
the  United  Sta'es  to  permit  the  aj^ent  of  the  United  States  to  prepare  tlie  inftru- 
ments  of  aflignracnt.  In  the  «.aie  of  Ilanbury's  executors  it  is  remarkable  thai 
the  defence  of  the  United  States  has  been  placed  on  the  gn^und  tliat  the  cieditoi 
having  relealed  the  debtor  by  his  voluntary  a(5l  had  no  ritjht  to  tlv:  money  claim- 

*<^  e.d,  and  it  is  not  denied  on  cither  IJde  that  the  debtor  is  for  ever  diftharged  by 
virtue  of  the  agreement  between  the  parties;  if  this  be  lb,  what  is  there  in  the 
claimant  that  is  alTignable  ?  Defirous  as  I  am  that  the  bufmcfs  before  the  Board 
fo  far  as  it  depends  on  thofe  employed  on  the  part  of  the  United  States  fliould 
be  conduced  conformably  to  tlie  direcflions  of  the  Board,  v-"/  this  defire  mujl  yiehl 
to  the  higher  corifid.raiiom  ofivhat  is  due  to  the  United  States  Juftice  to  my  country 
and  its  honor  too  forbid  any  acquiefcence  in  the  opinion  that  the  Board  may 
compel  the  United  States  or  any  of  their  oHicers,  without  their  confent  to  ieconu- 
thi  drawers  of  releafes  and  ajjignmcnts  for  the  Britifli  claimants." 


RESOLVED — That  it  would  not  become  the  Board  to  enter  into  controverfy 
upon  thisfubjedl.  But  it  does  not  appear  how  •*  the  honor  of  the  United  States" 
can  be  afFeded  by  an  order  on  the  agent,  whom  they  have  appointed,  to  prepare 
the  draught  of  an  afllgnment  any  more  than  that  of  his  Britannic  majelly  by  an 
order  on  the  agent  appointed  by  his  faid  niajefly  to  make  up  an  account :  That  the 
Board  are  dependant  for  tJiat  refped  which  may  be  due  to  their  a(5ts  on  the  fevrral 
governments  of  the  two  nations  who  have  entrafted  them  with  the  final  fettlement 
of  important  difFerenccs  ;  and  as  it  is  indeed  true  that  the  Board  cannot  of  them- 
felves  "  compel  obfervance  of  any  of  their  rules  and  orders  for  regulating  the  courfe 
of  their  proceedings,  and  the  condud  in  that  refpe£ly  of  the  agents  pradtifing  before 
them  and  which  by  an  authority  incidental  to  the  greater  power  of  ultimate  decifion 
they  are  entitled  to  prefcribe — therefore  and  for  the  purpofe  of  efFedtuating  the 
determination  which  the  Board  on  full  deliberation  and  after  many  conferences 
had  unanimoufly  agreed  on  to  make  an  award  in  this  cafe  in  favour  of  the  claimants 
— recalled  the  faid  order  of  the  a6th  day  of  March  laft,  and  ORDERED— 
That  the  general  agent  for  claimants,  ading  under  the  authority  of  his  Britannic 
majefty,  do  immediately  prepare  and  lay  before  the  Board  the  draught  of  a  releafe 
to  the  United  States,  to  be  fettled  a-nd  directed  by  the '  Board  purfaant  to  the 
treaty. 

Exiralfed  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secrbtary. 


ComMissionbbs* 


(    t;z    ) 

Commissioners'  Office, 

PhUiuklphia^  \<\th  ALiy,  1 799. 

Present,  ^s  deforf.. 

I  HE  Board  ha  'ag  cv>  ifidcrcd  the  reprefentations  of  the  agent  for  the 
United  States  rcfpe>5ling  '^hc  impcrfe(5t  llatemcnt  of  fpecial  circiimftanccs  on  the 
part  of  claimants,  and  ot  nich  he  juftly  complains,  as  preventing  him  in  many 
inlbnces  from  making  full  anfwers  to  the  whole  matter  : 

ORDERED — That  the  agent  for  the  United  States  make  anfwer  in  every  cafe 
with  as  much   difpatch  as   poifible,  and  in  whatever  order  he  may  f.nd  convenient 
upon  fuch  general  objedion  afFeding  the  whole  cafe  as  fuch  cafe  may  prefent — Aa. 
for  example,  the  objedion  that  there  was  no  lawful  impediments  or  that  the  claim- 
int  does  not  poffefs  a  charadtr  entitling  him  to  claim. 

From  which  order  Mr.  Fitzsimons  and  Mr.  Sitgreaves  diiTented. 

JUstradeJ  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secretary. 


Commissioners'  Office, 

Philadelphia^   l^ih  May,    1 799., 

Present. 

Mr.  MACDONALD, 
Mr.  RICH, 
Mr.  FITZSIMONS, 
Mr.  GUJLLEMARD. 

In  the  Cafe  o/'H anbury  6^  aJs,  Executors  of 

M.  Hanbury. 

A  DRAUGHT  of  a  releafe  of  the  debt  in  this  cafe  prefented  by  the  general 
agent  for  claimants  purfuant  to  the  order  of  the  Board  of  the  icth  current,  having 
been  read, 

ORDERED — That  the  agent  for  the   United  States  have  leave  to   fee  and 
make  objeaions  to  and  propofe  alterations  on  the  fame  within  eight  days. 

Extraded  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secretary. 

Commissioners' 


Present, 


CoMMissioi^ERs'  Office, 
PhiJadchhla^    I  -th  May,    I  7yy. 


Mr.  MACDONALD, 
Mr.  RICPI, 
Mr.  FITZSIMONS, 
Mr.  SITGREAVES. 
Mr.  GUILLEMARD, 


///  the  Claim  of  W.  R.  Lidderdale,  Executor  of  Jou.N 
LiDDERDALE/or  the  Debt  of  Thomas  Man 

Randolph. 

XvESOLVED — That  no  legiflative  aft  having  been  pufTcd  to  repeal  iIk 
aft  of  aflembly  of  the  State  of  Virginia,  made  in  the  yo.ir  1777,  whereby  it  \va3i 
ena(5ted,  that  it  fliould  be  lawful  for  any  citizen  of  Virginia  owing  money  to  a 
fuhjea  of  Great  Britain  to  pay  the  fame,  or  any  part  thereof,  into  the  loan  office 
of  the  State  in  difcharge  of  the  debt,  or  to  prevent  the  operation  of  payments 
into  the  loan  ofEce  purfuant  thereto  againft  the  right  of  the  BritiHt  creditor,  as 
fccured  by  the  4ih  article  of  the  treaty  of  peace  ; — But  on  the  contrary,  the 
repeal  of  •*  all  fuch  afls  or  parts  of  a^fls  of  the  legiflature  of  the  faid  common- 
*<  wealth,  as  had  prevented  or  might  prevent  the  recovery  of  debts  due  to  Briii/!^ 
**  f^i^'^^^'h  according  to  the  true  intent  and  meaning  of  the  treaty  of  peace,''  havin" 
by  the  provifo  in  the  aeT:  of  aflembly  pafled  on  the  11th  day  of  December  1787, 
been  exprefsly  fufpended,  on  a  condition  which  was  never  removed  : — And  the 
claimant  having  brought  his  acflion  in  this  cafe,  in  the  circuit  court  of  the  United 
States  for  the  diftrift  of  Virginia,  in  which  the  defendant  pleaded  payment  into  tlie 
loan  office,  purfuant  to  the  laid  aft  of  afl'cmbly  ; — And  the  faid  circuit  court  of  the 
United  States  (eltabliflied  by  the  ad  commonly  c.illed  \\\q  judiciary  a£l,  paffed  in 
the  year  1789,  under  the  prefent  conftitution  of  the  United  States)  having  in  the 
cafe  of  Warre,  Executor  of  Jones  againll:  Hylton  in  June  1793,  determined  on 
full  argument  and  confideration,  that  f"ch  paymencs  into  the  loan  office  were  good 
againft  the  Britifh  creditor,  notwithftanding  the  faid  4th  article  of  the  treaty  of 
peace  and  the  6th  article  of  the  faid  conilitution,  declaring  "  all  treaties  made 
"  under  the  treaties  of  the  United  States  to  the  fupreme  law  of  the  land,"  the 
recovery  of  the  debt  in  queftion  was  in  confequence  of  the  payment  into  the  loan 
office  in  this  cafe  made,  impeded  by  the  operation  of  the  faid  a<5l  of  aPcmbly,  the 

effba 


i„-, 


(     64-    / 

cffcfV  Nvhc.cuf  vas  Co  Ictilca  and  declared  by  the   faid  ciiCuit  co.u.   of  the  Umtcd 
S  ucs    und^r   th.  prcfcnt  conlUtullon,  againll  the  r.ght  o   th     IJ.m  h  crcduor  tc 
reco  erin  fuel,  cafcl;  und  which  docihou  remained  the  evidence  of  the  law  at  the 
kte  cfthe  treaty  of  Imitv,  and  till  February  .  7</-,  when  the  fame  was  .eve.fed 
by    he  f  preme  cou.  r.  of  the  United  States  :- And   that  dur.ng  the  op-at^n  o 
tie  laid  ua  of  adembly  ar,  a  lawful  i.npcd.ment    v.z.  in  the  year    795.  the   at  1    . 
Thomas  M.  Randolph/ the  debtor  in  this  cale,  dted,  havmg  in  the  years  ^J^o 
and    Vo..  in  cordld  ration  of  marriage  and   marnage  pcrttons,  made  convey  an  .. 
of  Ixnds  and  other  valuable  property  to  a  large  an.ount,  by  virtue  ot  which  con^ 
Itces  it  tpear  fron>  theVleadnigs  before  the  Bbard,  that  the  children  o    the 
}ri-dl"  3     Ranuolph/or  others,  are  in  pofTeffion.-And  further  that  it  :■ 
chdmant  w.-re  ftill  bound  to  commence  ,nd  go.through  the  or^,«..v  courie  of    u  - 
c  a  proceedings  for  the  recovery  of  the  debt  in  quefhon,  it  would  not  be  in-  un- 
bent en  hi^'  fas  urged  in  this  cafe)  to   "  exhaull  e.ery  rncans  of  payment  which 
«  thefaws  o    the  country  furnilhed"-And  in  particular,  that  it  would  no   be 
incum'  e^t  on  him,  as  urged  in  the  cafe  of  Startfield,  to  which  the  argument  in. 
h  sTafe    efers,  t^  inftitufe  proceedings  in  chancery  o;  "^^^^^^-^  J'^^f^l^l'^lt 
of  trvinc  whether  conveyances  executed  by  the  laid  Fhomas  M.  Randoli^i,  now 
deceafed,  dur  ng  the  operation  of  the   laid  lawful  impediment,  could  be  let  afide 
1  fraudulent,  luch  procee-hngs  in  chancery,  or  otherw.le,  for  the  difcovery  and 
correafon  of  fraud,^not  being  in  ihe  ordinary  courje  of  jucUclal  proc.d„^s  for  the 
recovery  of  debt,  iithin  the   defer iption   and   "?---g  ^^  ^^^^Tr  /"Ify-T 

t^"^^     o^e^i^afet  "ccaf.oLd  by  fuch  infolvency  of  the  debtor  - 
'TohercUs.  as  would  eaually  have  operated  to   produce  fuch  lofs,  if  the 
;.  ?;id  imjernlent  had  not  e.-Ied/'  «  or  by  the  manifeft  delay  or  negligence  or 
«•'  -wilful  omiffion  of  the  claimant." 

From  which  refolution  Mr.  F.tzsimoks  and  Mr.   S.tgreaves  difrented 
ftadngTheir  intention  of  placing  on  the  minutes  the  reafon  of  their  diffeni  at  a, 
futiire  day. 

Extraaedfrom  the  proceedings  of  the  Board. 

G,  EVANS,  Secretary?  _. 


IfK 


\  ««>      ..*•• 


In  the  Cafe  of  Han  bury  and  cihr:rs^  Executors  rf 

Mary  Ha  is  bury. 

A  DRAUGHT  nf  a  releafe  of  the  debt  in  this  cl.iim  to  the  United  States, 
having  been  prefentod  to  the  Board  by  the  general  agent  for  claimants  and  leave 
having  been  given  to  the  agent  lor  the  United  States  by  the  order  of  the  Board  of 
the  I  jth,  inftant,  to  fee  and  make  objcdions  and  propofc  alterations  to  the  funic 
within  eight  days. 

The  agent  for  the  United  States  in  purfuance  of  that  order  obfcrves,  that  the 
draught  of  the  releafe  fubraittcd  to  the  Board  by  the  general  agent  for  claimants,  is  in 
his  opinion  defcdivc. 

I  ft.  Becaufe  the  draught  does  not  particularly  defcribp  the  debt  by  fuch  words, 
that  it  may  be  fpecifically  known  and  diftinguifhed  from  other  debts,  for  which 
purpofe  the  inftrument  fhould  contain  an  apt  reference  to  the  evidence  of  the  debt, 
if  there  be  any  fuch  evidence,  which  alfo,  if  in  pofleinon  of  the  claimant,  fliould  be 
delivered  to  die  agent  for  the  United  States  for  their  ufe^ 

2d.  Bccauff  the  draught  contains  words  of  acqinttanc  only,  and  if  the  claimants 
have  any  right  againft  the  debtor  to  the  debt,  concerning  whidi  the  claim  for  com- 
penfation  has  been  made,  fuch  right  is  not  transferred  to  tlie  United  States.  Thouqh 
the  defence  of  the  United  States  was  in  this  cafe  placed  on  the  ground  that  tlie 
original  right  of  the  claimants  wa^  extinguifhed  in  confequencc  of  the  agreement  of 
the  parties  ;  yet  it  is  poflibly  otherwife.  It  is  fuppofed  by  the  agent  that  the  in- 
ftrument of  releafe  to  be  given  by  the  claimant  in  purfuance  of  the  treaty  fhould 
operate  not  only  by  way  of  difcharging  the  United  States  from  the  future  demands 
of  the  claimants  but  by  way  of  palling  to  them  the  intereft  and  right  whatfoever  it 
be,  of  the  claimants  againft  the  debtors  to  the  debts  concerning  which  the  claims  are 
made.  A  perfon  infolvent  at  one  time  may  become  folvent  afterwards,  and  the 
United  States  paying  the  awards  are  entitled  to  the  poflibility,  however  fm^il,  o£ 
obtaining  reimburfement  from  the  debtors  at  a  future  dav. 

Thefe  objeiSiojQs  to  the  draught  are  refpeflfuUy  fubmitted  to  the  Board. 

JOHN  READ,  JuN. 

ylgent  General  for  the  United  States, 
20th  May,  1 799. 


Commissioners' 


(     66     ) 


Commissioners'  Office, 

Pljilaclelphia,  2 2d  May,  1799. 


Present,  /is  beforf.. 

in  the  Claim  0/ Clark,  Adminijlrator  r/IlussEL,  for 

the  Debt  of  J.  Dorsry. 

Resolved— That  no  Icglflatlve  aa  having  been  pafTcd  to  repeal  the  a^ 
ofafTcmblyof  the   State   of  Maryland    made  in  the   year  1780    thereby,  sfter 
enaaing  «  that  all  debts  and  agreements  thereafter  made  fhould  be  paid  or  executed 
agreeable  to  the  bond,  promife.  or   agreement,  and  the  intent  and  ir.amng  ot  the 
"parties,  any  law  to  the  contrary  notvvithftanding,"  «  the  debtors  of  creditors  wao 
«  had  not  become  fubjeas  and  rcfidents  of  fome  one  of  the  United  States,     were 
authorized  to  make  payments  into  the  treafury  of  the  State  in  difcharge  ot  the  debts 
due  to  fuch  creditors;  or  to  prevent  the   operation  of  payments  into   the  trea  ury 
rnrruant  thereto  againft  the  right  of  the  Britifh  creditor    as  recured  by  the  4th  article 
of  the  treaty  of  peace ;  and  neither  the  general  aft  of  afTembly  pafTed  in  May  i  7S7, 
declaring  the   faid  treaty  «  to  be  the   fuprcme   lav/  within  the  State,  nor  the  OtH 
•u-tic1e  of  thr  conlHtiition  of  the  United  States,  declaring  all  "  treaties  made  under 
*«  their  avthoricy  to  be  the  fuprcme  law  of  tlie  land,"  and  '    binding  on  die  judges 
"  in  every  S-ate"  as  fuch,  having  the  effca  of  fuch  repeal  or  to  prev-ent  the  operation 
of  fuch  payments,  as  appears,  not  only  from  the  uniform  courfe  of  dec.fion.  ot  the 
high  court  of  appeals,  being  the  higheil  court  ot  the  St.ue,  certified  to  the  Board  in 
the  cafe  of  Haubury,  by  the  certificate  of  the  proper  officer,  dated  the  19th  day  of 
Auouil  1707,  and  particularly  the  decifion  of  the  faid  high  court  in  June  1795,  in 
thetafe  oUlarrjoood  agawjl  this  clamant,  adjudging  fuch  payment  into  the  treafury 
to  be  good  againft  the  B-itifn  'reditor,  but  alfo  from  the  judgment  of  the  circuit 
court  of  the  United  States,  tHauiinied  by  the  ad  commonly  cA\tAih^  judictary  ad, 
pafTed  under  the  prefeniconaitution,  in  the  year  1789,  where  on  full  argument  and 
confidcration  it  was  determined  in  the  cafe  of  Warre  executor  of  Jones  againilHyl- 
ton,  in  Tune  1793,  that  payments  into  the  loan  office  ot  the  State  of  Virginia  (in 
their  nature  fmiillr  to  payments  into  the  treafury  of  the  State  of  Maryland)  were 
rood  againft  the  Britilh  creditor,  notwithftanding  the  faid  treaty  of  peace  ;  the 
faid  decifions  of  the  highcft  court  of  the  State,  and  of  the  circuit  court  of  the  United 
States,   under  the  prefent  conftitution.   againft  the  right  of  the  Britilh  creditor   o 
recover  in  fuch  cafes,   remaining  the  evidence  of  the  law  at  the  date  of  ^he    r.a^y 
of  amity,  and  till  the  reverfal  in  the  fuprcme  court  of  the  United  States  in  179,, 
of  the  faid  judgment  of  the  high  court  of  appeals   of  Maryland,   m   the  cafe  of 
llar'woa  ogalnjl  this  claimant    as  a  cafe  precifely  iimilar  in  its  principles  to  that  ot 
U^arre  eJcutor  oi  Jones,  againjl  Hyhon.   refpeding  p.ayments  into  the  loan  office 
of  Virginia,  in  which  the  judgment  of  the  circuit  court  of  ti;e  United  States  had 


been  rcvciTcd   in   Tchrv ary  i'j(j6  ',   and  the  faid  Jo'.n  Doifcy  huving  hc-xn  cVS- 
chiirgtd  as  an  inrolvcp.t  debtor    on  the   l  itii  day  ot"  l>:i-.emb.r  1788, 


as  :!p|"icars 
from  the  record  be!b!c  the  Boiird,  the  faid  I'.cl  of  afilnibly  v/ilh  the  payment  into 
the  ticafury  in  t!r.s  ciife  nade  purfuant  thL-reto,  operated  within  tiic  meiinin^r  and 
defcription  of  the  treaty  of  amity,  as  a  hiwful  impediment  to  th^e  recovery  of  the 
fiiid  debt,  to  the  extent  oi  the  i  lid  paymerit  into  the  trealury ;  referving  tlu- 
qucilion,  whether  th.e  faid  lawful  inipedirncnt  lb  operated  bevond  tl:e  faid  luiymer.t 
into  th'.:  treafury  ;  and  further — Referving  all  objections  to  the  evidenee  and  amount 
of  the  faid  debt,  and  the  full  cifed  of  all  facls  and  cireumihinccs  to  (hew  that  tlie 
lofs  "  was  cceafioned  by  fi:  1)  infblvency  of  the  debtor,  or  otiier  caufes  as  -.vould 
♦'  equally  have  operated  to  produce  luch  lofi,  if  tiie  fiid  impedimtnt  had  not  cx- 
"  iikd,  or  by  the  manifefl:  delay,  or  negligence,  or  wilful  omiliion  of  the  cLumani." 

From  which  refolution  Mr.  Fitzsimons  and  Mr.  S'tgi'.caves  dilTented. 

ExtraSed  from  the  procccd'm^s  of  the  Board. 

G.  EVANS,  Secketat.v. 


Present, 


Commissioners'  Office, 

Fh'iladclphiai  izth  June,  1799. 


Mr.  MACDONALD, 
Mr.  RICH, 
Mr.  FITZSIMONS, 
Mr.  SITGREAVES, 
Mr.  GUILLEMARD. 


Mr.  Macdonald    again  moved  the  order  propofed   yeflerday — the  fame  was 

pafled  as  follows ; 

V_/RDERED — That  the  agent  for  the  United  States  inform  the  Board 
whether  he  is  in  the  courfe  of  complying  with  the  gencial  order  of  the  14th  day  of 

Mav 


X*  ♦ 


(     <58     ) 

May  lafl,  by  preparing  anfwcrs  on  fucli  general  objeiftlona  as  occur  in  thofc  cafes  in 
which  full  aniV/ers  cannot  be  made  to  the  whole  of  the  fpccial  matter  rerpe(^ively 
tlierein  contained. 

From  which  order  Mr.  Fctzsimons  and  Mr.  Sitgreaves  diflented. 

Hxlradcd  from  the  proceedings  of  the  Board. 

G.  EVANS,  Secretary, 


Commissioners'  Office, 

Plnladelphlay   \ith  June^  1799. 


Present,  as  before. 


In  the  Cafe  ^Hanbury,  Executors  of  Hanbury. 


X  HE  Board  having  considered  the  objections  fubmitted  on  the  part  of  the 
United  States  to  the  draught  in  this  cafe  propofed  by  the  general  agent  for  claimants 
purfuant  to  the  order  of  the  1 5th  ultimo,  ftating  generally  "  that  the  draught  does 
«'  not  particularly  defcribe  the  debt  by  fuch  words  as  it  may  be  fpecifically  known 
*'  and  diftinguiflied  from  other  debts,  for  which  purpofe  the  inftrument  fhould  con- 
*<  tain  an  apt  reference  to  the  evidence  of  the  debt,  if  there  be  any  fuch  evidenccy  and 
"  that  the  draught  contains  words  of  acquittance  only." 

ORDERED — That  the  agent  for  the  United  States  lay  before  the  Board  the 
fpecial  alterations  he  would  propofe  to  have  made  on  the  faid  draught.  With  this 
obfervation  that  there  can  be  no  award  in  any  cafe  where  there  is  no  evidence, 
and  that  in  this  cafe  the  evidence  arofe  frc;a  matter  of  record  filed  with  tlie 
claim. 

Mr.  FiTzsiMONS  and  Mr.  Sitgr.  .rES  diffented  from  the  faid  order,  and 
prefented  the  following  minute  of  their  reafons;  viz. 


(     <>9     ) 

ift.  Becairfe  ith  in  effecl  renewing  upon  the  agent  for  the  United  States  an  order 
in  this  cafe  which  the  Board  have  already  recalled. 

2d.  Bccnufe  it  implies  a  cenfure  on  the  agent  for  the  United  States  for  an  ex- 
preflion  which  is  deemed  correft  and  proper,  in  as  much  as  an  award  may  be 
founded  on  a  dvbt,  or  debts  not  of  fpecialty,  the  evidence  of  which  cannot  be 
i  eferrcd  to  by  terms  of  apt  defcription  in  an  inftrument  of  aifignment. 

Mxtrailid  from  the  proceedings  of  the  Board. 

G.  EVANS.,  Secretary. 


Commissioners'  Office, 

Philadelphia,  2\Jl  June^  1799- 


Present,  as  before. 


In  the  Cafe  o/*  John  Bowman  and  others^  furviving 
Partners  of  Spiers i  Bowman  and^co, 

i  HE  Board  having  confidered  the  argument  ftated  in  the  anfvver  in  this 
cafe  In  the  following  words,  "  But  this  admiffion  is  not  meant  to  wave  what  has 
*•  been  before  contended,  that  fuits  fhould  be  brought,  as  well  for  afcertaining  the 
"  amount  as  to  prove  that  the  payment  is  not  attainable  froir  ihe  debtor,  or  to 
*'  excufe  the  claimants  for  the  negleft  of  not  making  perfoiial  application  for  the 
"  debts,"  RESOLVED  (to  prevent  mifapprehenf.on  ap.d  'vafte  of  time  in  un- 
neceffary  controverfy)  that  it  is  not  incumbent  on  claimants  vjow  to  bring  anions  or 
inftitute  fuits,  or  in  any  other  manner  to  proceed  againft  the  debtor  or  his  eftate  for 
the  recovery  of  the  debts  on  which  compenfation  is  claimed,  or  any  part  of  them — 
without  prejudice  to  the  queftion  whether  the  claimants  ought  before  to  have  fo 
proceeded,  or  whether  the  lofs  complained  of,  or  any  part  of  it,  has  been  occafjoned 
by  the  raanifefi:  negligence  or  wilful  omiflion  of  the  claimants,  within  the  intent  and 
meaning  of  the  provifo  in  the  treaty  of  amity. 

^.  From 


(     70     ) 

From  which  refcluiion,  Mr.  Fitzsimons  and  Mr,  SixaaEAvEs  dilTented, 
ftating  their  intention  of  phiclng  on  the  minutes  the  retifons  oi  their  dillcnt  at  j. 
future  day. 

Estraded  from  ihe  proceedings  of  the  Board. 

G.  EVANS,  Secretary. 


Commissioners'  Office, 

rhlladclpJjia,  cCwi  Jane,  1 799. 


Present,  as  jsefohe. 


In  the  Cafe  of  J.  Bowman, ///ri^-zVor  (j/  Spiers, 

Bowman  ^  co. 


■  1  HE  Board  having  confidcred,  that  in  the  anfwer  in  this  cafe,  the  agent 
for  the  United  States  infilb  that  the  claim,  though  fupported  in  all  other  points, 
would  not  be  good,  even  on  fpecialties,  for  «  inleref  during  the  ivar,"  and  that 
the  fame  general  objedion  is  (lill  infilled  on  in  other  cafes,  RESOLVED— That 
by  the  refolution  palled  by  the  Board  on  the  J  8th  day  of  December  laft,  they 
have  folemnly  determined  the  contrary,  and  that  agents  pradifing  before  them  are 
bound  to  pay  refpeft  to  their  refolutions  by  refraining  from  all  argument  or  oppo- 
fiuon  on  queftions  which  they  have  diftinftly  fettled. 

Trom  which  refolution  Mr.  FirismoNS  and  Mr.  Sitgreaves  dlflented. 


COMMISSIONSRS' 


7^ 


Commissioners'  Officii, 

Phikilelphiti,   zCth  June^  ^799' 

Present,  as  before. 

In  the  Cafe  0/ George  Anderson,  y«r'i;k'i«j>'  Partner  of 
Anderson  6'  Horseburch. 

J-  HE  Board  having  confidered  their  refolution  in  the  cafe  of  Ctninm^h:nn 
an'I  company,  paflcd  on  the  fixth   day  of  Augurt  lafl:,  in  the  following  words: — 
*'   RESOLVED — That  fo  far  as  the  full  recovery  of  the  debts  in  this  cafe  claimed, 
"  has  during  the   operation   of  the   fiid  lawful    impedimen's   been  -^clayed,  and 
*'  the   value   and   fecurity  thereof  impaired  or   Icffened,  or   totally  lolt,  by  lapfe 
**  of  time,  the  lofs  of  legal  evidence,  infolvency  of  debtors,  or  othcrwife ;  fuch 
"  delay  of  recovery,  or  diminution,     or   lofs   of  value   and  fecurity,  are   to  be 
"  afcribed  to   fuch    operation   of  lawful  impediments  ;  unlefs  it  be  (hewn,  v.ith- 
<'  in  the   provifion  of  tlie  treaty  of  amity,  that  fuch  delay  of  recovery  and  dimi- 
«'   nation,  or  lofs  of  value  and  fecurity,  were  occafioned  by  other  caufes,  which 
«*  would  equally  have  I'o  operated  if  the  faid  lawful  impediments  had  not  exitted ; 
<<  or  arofe  from  the  manifeii  delay  or  i^gligence,  or  wilful  omifHon  of  the  claiia- 
**  ant,"  from   which   refolution  k^^j^^'iTzsxuotis   entered   his  diffent,  on  the 
ground  dated  in  his  minute  of  diffent  of  the  8th  day  of  Auguft  lafl,  as  follows  : — 
*'  Becaufe,  a  principle  is  laid  down  which  throws  the  whole  burden  of  proof  upon 
<*  the  United  States  in  every  cafe  where  legal  impediments  exifled,  contrary  as  is 
"  believed,  to  the  clear  principles  of  law  and  equity  : — By  this  decljion  the  creditor 
"  is  excufed  from  proving  that  his  debtor  ivas  folvcnt  at  the  expiration  of  the  v;:'r, 
"  or  that  he  has  ufed  due  diligence  for  the  recovery  of  his  debt ;  to  avoid  the 
"  payment  of  the  United  States  mud  prove  the  contrary  in  both  inllances."     And 
further,  havinff  confidered  that  notwithftanding  the  known  meaning  and  intent  of 
the  above  refolution,  as  ftated  and  oppofed  in  the  minute  of  dilTent  before  recited, 
it  has  fmcebeen  repeatedly,  and  in  almoll- every  cafe  before  the  Board,  maintained 
and  artrued  on  the  part  of  the  United  States,  in  dired  oppofition  to  the  laid  refo- 
lution, or  as  if  no  fuch  refolution  had  ever  paffed,  that  the  claimant  is  bound  to 
prove  t\\<i  fohency  of  debtors  at  and  fubfequent  to  the  peace,  as   an   indifpenfable 
rcquifite  in  lupport  of  a  claim  before  this  Board,  which  pofition,  notwithflanding 
the  faid  refolution,  whereof  the  known  meaning  was  fo  Ihited  and  declared  in  the 
diffent  of  Mr.  Fitzsimons,  has  been  aflerted  and  confirmed  in  the  paper  entered 
on  the  minutes  in  cafe  of  Inglis,  of  the   19th  day  of  February  laft  iigned  by  Mr. 
FiTiCsiMONS  and  Mr.  Sitcreaves,  as  follows: — "It  is  agreed  on  all  hands, 

"  th.:t 


**  that  acuiinuuitmufl  i.ro"0  a  clcbior  to  luvc  bctn  fiilvv-.i.L  a!  :'Li' paii-c,  \\\  oicl'rto 
"  chaigc  the  United  States  with  u  lofs  ;"  the  vord?  ♦'  It  h  ::^iriii ouiu'i  L:/i  fs" 
having  been  afterwards  by  leave  {buck  out,  but  the  polition  lliil  remaining  ahfoluto, 
a=  an  axiom,  notwithftanding  the  above  recited  reiolf.:ion  ;  in  coniequence  of  all 
vliich,  the  laid  rclokition  or  lolenin  d-itermination  of  t'^^^  Board  on  the  point  in 
cjuedion,  j'affed  after  much  conference  and  on  mature  dciiberation,  and  of  which, 
it  never  has  been  fuggc[led,  tliatthe  meaning  was  undcritood  to  be  dihvrent  fioni 
that  v/hich  is  exprclfjd  in  Mr.  Fitzfimonf's  di.Tent,  appears  nov/  to  be  held  by 
oni  ot  the  [)arties,  as  not  entitled  to  any  confid-.Tation,  inalmuch,  that  the  agent 
for  the  United  States  in  this  cafe  declines  offerin'T  fuch  evidence  as  he  has  in  his 

IT 

po'.ver,  to  prove  liie  infciveiicy  of  a  debtor  at  and  (ince  the  peace,  till  tlie  claimant  has 
pHKuiccd  iVis  evidence  to  prove  his  folvency,  as  appears  from  the  following  pafiage 
intheaniwer  : — '*  Up;jn  tlic  fecond  point,  viz.  (that  tiie defendant,  Robert  Hart, 
"  was  infolvent  at  the  peace,  and  his  eltate  unequal  then  and  fince  to  the  payment 
*<  of  his  debts)  as  this  niuft  reft  on  proof,  and  from  that  caufe  can  now  require  no 
'•  obfervation,  the  agent  for  the  United  States  will  endeavor  to  be  prepared, 
*'  nvhtntvcr  the  claimant JljiiU  all  cmpt  tojhi-iu  the  folvency  of  lioltit  hlart  al  the  pcace^ 
"  to  produce  fuch  proof  to  invalidate  it,  as  the  nature  of  the  teiiimony  offered  by 
•'  the  claimant  may  require.  Until  fuch  tcjl'imony  is  offered  by  the  claimant,  as 
*'  well  as  all  ulhcr  tejllmovy  neceffary  to  fupport  his  claim,  it  will  be  irregular  and 
•♦  premature  for  the  agent  for  the  United  States  to  offer  any  teltimony  in  their 
"  defence," 

RESOLVED — That  it  becomes  the  duty  of  the  Board,  to  prevent  the  great, 
diforder  and  delay  which  in  the  courfe  of  evidence  would  arife  from  the  difregard 
of  the  fiiid  refoiution,  by  enjoining  a  due  attention  to  the  fame  in  conformity  to  the 
known  and  declared  meaning  of  the  Board; — that  the  faid  refoiution,  by  necclTary 
implication,  lays  down  the  rule  refpecting  the  onus  ptohandi  in  the  matter  in  qucf- 
tion  ;  and  on  the  plaineft  principles  of  reafon; — for  whatever  deprived  the.  creditor, 
of  the  means,  is  in  thefirjl  inflanceto  be  held  ar,  the  caufe  of  his  not  arriving  at  the 
end;  whatever  in  the  pofitive  inftitution  of  the  law,  or  the  fettled  courfe  of  judicial, 
pradlice,  prevented  him  i'roxn proceeding  for  the  recovery  of  his  debt,  is  to  be  deemed 
a  lawful   impediment  which  prevented  fuch  vecoxery ;  confequently  the  lofs  arifing 
from  his  not  recovering,  is  in  the  firfl  inftance,  to  be  afcribed  to  the  operation  of 
the  faid  lawfn.l  impediment,^ — that  the  above  propofitions  art  prima  facie  complete, 
ftanding  on  their  own  intriniic  evidence,  and  fubjet^  only  to  the  effed  of  futficient. 
evidence  to  the  contrary  :  So  that  it  is  not  incumbent  on  the  claimant,  to  prove  the 
folvency  or  capacity  of  the  debtor  to  fatisfy  the  creditor  at  or  fmce  the  peace,  but. 
open  to  the  United  States  to  rrieet  the  prima  facie  evidence  already  flated,  by  rea- 
fonable  evidence  to  the  contrary: — and  although  the  Board  are  to  be  determined  by 
principles  of  found  reafon  andjuitice,  and  not  to  be  affedled  byfuggeftions  of  hard- 
fliip  or  difficulty,  yet  defirous  as  they  are,  in  this  great  national  bafinefs,  to  difcharge 
their  duty  in  a  manner  which  may  be  as  generally  fiuisfaiStory  a;;  Uic  natural  preju- 
dices of  parties  interefted  will  permit,  they  think  it  not  improper,  in  confideration 
of  the  earneft  oppofition  which  was  made  in  the  Board  to  the  vbc-ve  recited  refo- 
iution 


C     73     ) 

lutlon  in  fhe  C'^'  of  Cunningham  and  co.  on  the  ground  that  it  never  could  have 
been  intended  to  impofe  fo  great  a  hardfliip  on  the  United  States,  to  fugged  the 
refleftion  that  it  cannot  prove  a  taflc  of  greater  difTiculty  to  the  United  States,  with 
all  the  means  of  enquiry  and  information  which  they  poffefs,  and  under  their  refpon- 
flbiiity  of  indemnifying  againft  lawful  impediments  to  the  recovery  of  jud  debts,  to 
fatisfy  this  Board  on  fufficient  evidence  of  what  muft  in  many  infiances  have  been, 
and  may  ftill  be  matter  of  great  notoriety,  viz.  that  at  a  certain  period  a  debtor  was 
in  fuch  a  fituation,  that  according  to  reafonable  inference,  he  could  not  have  raifod 
iiioney  or  procured  fecurity  for  the  payment  of  a  certain  debt,  although  the  full  force 
of  leg  '  execution  had  been  brought  againft  him,  than  it  would  be  to  z.  foreign  cre- 
ditor, perhaps  the  reprefentative  only  of  him  who  made  the  contra^,  and  totally 
unacquainted  with  the  former  fituation  of  the  debtor,  to  bring  evidence  o'i  the 
revcrfe; — the  faiSls  and  circumftances  necelTary  to  eftablilh  the  latter  propofition, 
being  in  their  nature  at  leaf):  as  much  afFedted  by  the  long  lapfe  of  time  fince  the 
peace,  when  every  lawful  impediment  to  the  full  recovery  of  the  debts  in  queftion 
ought  to  have  <;n  removed,  as  thofe  by  which  the  former  may  be  fubftantiated  ; 
and  fucli  lapfe  of  tmie,  fo  impairing  the  means  of  evidence,  being  the  juft  caufe  of 
complaint,  not  to  the  United  States,  but  to  creditors  only,  wherever  the  delay  appears 
to  have  arifen  from  the  operation  of  lawful  impediments  to  the  full  recovery  of  debts, 
l.iirly  contrafled  before  the  peace,  and  proteded  againll  fuch  impediments  by  the 
4th  article  of  the  definitive  treaty. 

From  which  refolution  Mr.  Fitzsimons  and  Mr.  Sitgreaves  diflented. 

Extraded  from  the  proceedings  of  the  Board, 

G.  EVANS,  Secretary. 


To  the  Commiffioners  for  carrying  into  ejfed  the  Sixth  /Article  of  the  Treaty  of  jimifyt 
Commerce  and  Navigation,  concluded  letnveen  his  Britannic  Majefly  and  the  United 
States  of  America^  on  the  nineteenth  of  November  1794. 

Reprefentation  on  the  part  of  the  United  States  relative  to  the  order  of  the  Board 

of  the  1 2th  June,   1799. 

1 N  confequence  of  the  order  of  the  Board  of  the  i  ith  inftant,  requiring  the 
agent  for  the  United  States  to  inform  the  Board,  "  whether  he  is  in  the  courfe  of 
"  complying  with  the  general  order  of  the  14th  day  of  May  laft,  by  preparing  an- 

K  «  fwcra 


(     74     ) 

*<  fw'crs  on  fvioli  gjiierii!  obje(::*:ions  as  occur  la  thufc  cafes  in  which  t.;!!  anfweru 
"  cannot  be  ni.idc  to  the  whole  of  the  fpecial  matter  refi^e^lively  therein  contained;" 
the  z'^inr.  for  the  United  Statcj  refpedfuHy  inforn;s  the  Board  : 

That  m:iny  claims  were  prefentcd  to  the  Board  in  a  liate  extremely  vague,  defec- 
tive and  imperfedl,  and  to  thefe  in  tlieir  prefent  condition  he  has  not  yet  prepared 
any  anfwers,  jntendin^  in  tlie  firtt  place  to  anlwer  thofe  which  are  more  certain 
and  complete. 

That  he  has  not  confidcred  himfelf  bound  in  any  cafe,  to  take  for  true  the  fiate- 
mtnt  contained  in  tlie  memorial,  and  therefore  lias  coniidered  it  his  duty,  to  feek 
for  information  concerning;  the  matters  fet  forth  in  the  memorial  or  fuggeiied  by  it. 
As  molt  of  the  claims  are  founded  on  debts  faid  to  be  dee  from  citizens  reilding 
in  fome  of  the  Ibllowing  States,  namely,  New  York,  Maryland,  Virginia,  North 
Carolina,  South  Caroli.ri  or  Georgia, 'it  has  b?en  necelHiry  to  feek  for  in^brma- 
tion  in  thefcStates  refpedlivcly  as  the  cafe  may  require,  which  being  remote  from 
Philadelphia  cannot  fad  to  take  up  a  good  deal  of  time. 

When  prepared  for  making  an  anfwer  to  a  claim,  the  agent  for  the  United  States 
conceives  it  his  duty  to  fet  forth  every  objedtiun,  whether  general  and  extending 
to  the  v/hole  claim,  or  fpteial  and  applying  to  a  particular  part  of  the  claim,  for 
he  has  not  permitted  hinifelf  to  fuppjfe,  that  the  above  recited  order,  was  in- 
tended to  infringe  or  retrain  the  right  which  the  United  States  poflefs  of  making 
tlieir  anfwers  to  claims,  whether  generally  or  fpeciully  which  their  agent  (hall  deem 
molt  proper  for  obtaining  a  juilaward  in  each  particuh-r  cafe.  A  ckiimant  may  ia 
one  memorial  demand  compenfation  for  a  great  number  of  debts  under  different 
circuml'bnces,  relative  to  which  different  obje>5tions  may  be  made,  and  each  objec- 
tion containing  a  general  principle  ;  for  example,  one  debtor  may  have  paid  his 
debt,  another  may  have  been  infolvent  at  the  peace,  another  may  have  been  and 
iu  ncv/  folvcnt.  .       , , 

Believing  that  every  claim  brought  before  the  Board,  is  to  be  determined  by 
equity  upon  its  own  circumibnces,  the  agent  for  the  United  Sates  is  in  the  courfe 
of  preparing  anfwers  with  all  pofllble  difpatch,  lladng  as  fpecially  and  as  liilly  as 
in  his  po'.ver,  all  fafts  not  contained  in  the  memorial  which  have  come  to  his 
knowledge,  and  all  objections  whether  general  or  Ipecial  which  appear  to  him  ma- 
terial for  the  coniideration  of  the  Board.  He  is  not  in  the  tourfe  of  preparing  an- 
fwers merely  of  form. 

The  claimants  have  been  upwards  of  four  years  preparing  their  claims,  with  the 
affiftance  of  able  counfellors  in  every  parti  ular  State,  as  well  as  in  Great  Britain. 
The  amount  of  claims  is  computed  to  exceed  twenty  millions  of  dollars.  The 
number  of  claimants  .ire  many  hundred,  and  the  number  of  debts  for  which  com- 
enfation  is  claimed  are  many  thoufand.  The  difHculty  of  obtaining  ufeful  know- 
edge  coneerning  the  multifarious  matters  neceflliry  to  be  known  is  extremely  great. 


r. 


The 


(     75     ) 

The  agent  for  tlie  United  States  hopes  the  Board  will  confider  all  thcfe  circum- 
ftances,  and  allow  him  reafonable  time  and  opportunity  to  defend  the  United  States, 
fo  that  right  may  be  done. 

JOHN  READ,  JuN. 

^gent  general  for  the  United  States, 
id  of  July,   1799. 


Commissioners'  Ofmce, 

Philadelphia,  zGth  June,  l']99- 


Present, 

Mr.  MACDONALD, 
Mr.  RICH, 
Mr.  FITZSIMONS, 
Mr.  SITGREAVES, 
Mr.  GUILLEMARD. 

In  the  Cafe  of  Andrew  Allen. 


The  Board  taking  Into  their  confideration  the  following  paflage  in  the  obfervations 

on  the  reply,  viz. 

J  N  the  cafe  of  Doaor  Tnglis,  the  Board  on  the  4 1 ft  May  1798,  RE- 
SOLVED— '  That  the  claimant's  charader  of  Britifh  fubjea  was  not  afFefted. 
or  impaired  by  the  a(5t  of  attainder  and  confifcation  pafled  by  the  State  of  New- 
York  on  the  21ft  of  Oaober  1779,  attainting  him,  the  Earl  of  Dunmore,  Go- 
vernor Tryon,  Sir  Henty  Clinton,  and  many  other  Britifh  fubjeas,  who  are 
therein  defcribed,  not  as  fubjeas  of  the  State,  but  as  perfsns  holding  or  claiming 
trobertv  within  the  State,  and  fprfeiting  and  confifcating  their  whole  eftates  real 
^  ^  -^  "  and 


« 


(     7*5    ) 

♦•'  and  peribnal .  for  their  ndhcvcncc  to  his  Britannic  majcfty ;  but  that  en  the 
"  contrary  the  faid  i\tt  of  attainder,  and  the  dcfcription  of  loyalift  or  refugee, 
•*  applied  to  the  claimant  on  tlic  part  of  the  United  States,  in  confcquence  of  his 
*'  faid  adherence,  are  conclulive  evidence  that  he  ftiil  maintained  his  original  allc- 
**  piance  :  that  therefore  he  is  entitled  to  claim  before  ^bis  Board  under  the /curt /y 
"  article  of  the  definitive  treaty  of  peace,  md  the  ^/ixth  article  of  the  treaty  of 
"  amity,  between  his  faid  majelly  and  the  United  States.'  "  This  refolution  has 
"  been  exadly  recited,  becaufe  it  may  be  underrtood  to  have  omitted  the  cafe  of 
•*  the  claimant,  who  in  the  adt  of  attainder  and  forfeiture  is  exprefsly  dcfcribed  as 
"  a  fubje<5t  of  the  State  of  Pennfylvania,  and  punilhed  as  fuch  by  a  forfeiture  of 
"  his  eflates  and  debts.  Indeed  the  exprelTions  in  this  refolution  feem  to  imply, 
that  if  Doflor  Ing/ls  had  been  attainted  as  a  fuhjcB  of  Ncvj  I'ork,  and  his  dells 
coiififcalcd  for  a  crime  committed  by  him  as  a  fuhjeCl  the  Board  would  have  dif- 
mifled  his  claim.  The  difliniSlion  fo  explicitly  taken  by  the  Board,  between 
*'  attainting  and  punifhing  a,  man  as  :ifubje8,  and  attainting  andpunilhing  him  '  as 
*'  a  perfun  hqfding  or  claiming  property  luithin  the  S/ate,'  niuft  have  been  meant  for 
•*  fome  ufe.  At  all  events,  this  refolution  cannot  be  confidered  as  deciding  that 
*'  the  fourth  article  of  the  treaty  of  peace  fct  afide  legiflative  ads  of  attainder  and 
"  forfeiture,  parted  againfl:  individuals  dcfcribed  and  holden  as  fubjedts  of  the 
'*  State,  and  punifhing  them  for  their  criminal  condud.  There  is  certainly  a 
*'  difference  between  a  confifcation  of  an  eneniy*s  property  by  the  right  of  war, 
"  and  a  forfeiture  of  a  fubjeft's  property  by  law  for  criminal  conduct :" 


(( 


(( 


RESOLVED — That  in  the  abovementioned  refolution  in  the  cafe  of  Dr. 
faglis,  the  Boar^'  did  not  decide  on  the  diflin(.iion  flated  in  the  above  pafTage  to 
be  "  between  e„ainting  and  punifhing  a  man  as  a  fubjed,  and  attainting  or  punifh- 
*♦  ing  him  as  a  perfon  holding  or  claiming  property  within  the  State  ;"  having  only 
referred  to  the  fad  for  the  purpofe  of  fliewing,  that  the  cafe  flood  clear  of  all  ob- 
jedion  on  the  ground  of  that  alledged  diflinftion. 

Ext raSled from  th^  proceedings  of  the  Board, 

G.  EVANS,  Sbcretary. 


Commissioners* 


(     77     ) 


Commissioners'  Oifice, 

J' 


FhtLuklphm,  f)lh  '/u:v. 


Ijyv. 


Present, 

Mr.  MACDONALD, 
Mr.  RICH, 
Mr.  FITZSIMONS, 
Mr.  SITGREAVES, 
Mr.  GUILLEMARD. 


In  the  Cafe  of  Andrew  Allen. 


J-  HE  following  refolution  having  been  the  fubjed  of  full  difcufHon  in  the 
Board  during  feveral  fittings — Mr.  Macdonald  with  the  concurrence  of  Mr. 
Rich  and  Mr.  Guillemard,  moved  that  the  fame  fliould  be  paffed. 

The  Board  having  confidered  the  "  frj  grouna  of  defence^'  taken  by  the 
United  States  in  this  cafe,  as  founded  on  the  aft  of  attainder  and  confifcation, 
Vi'iTed  by  the  State  of  Pennfylvania  againft  the  claimant  on  the  6th  day  of  March 
J 778,  in  the  following  terms,  <'  Whereas  Jopph  Gallonvay,  /Indrciu  JUen,  &c. 
"  &C.  being  allfuljeBs  and  inhabitants  of  the  State  of  Pennfylvaniay  have  mod:  trai- 

teroufly,  and  wickedly,  and  contrary  to   the  allegiance  they  owe  to  the   faid 

State,  joined  and  adhered  to,  and  ftill  do  adhere  to,  and  knowingly  and  wil- 
"  lingly  aid  and  affift  the  army  of  the  king  of  Great  Britain,  now  enemies  at 
"  open  war  againft  this  State  and  the  United  States  of  America,  and  yet  remain 
'*  with  the  faid  enemies  : — Be  it  therefore  enacted,  and  it  is  hereby  enafted  by  the 
"  reprefevtatiiies  of  the  freemen  of  the  commonivealth  of  Pennfylvania  in  general  aflem- 

bly  met,  and  by  the  authority  of  the  fame,  that  if  the  faid  Jofcph  Gallonvayy 
**  Andretv  Allen,  &c.  (hall  not  render  thcnifelves  refpedtively,  to  fome  one  or 
•*  other  of  the  juftices  of  the  fupreme  court,  &c.  on  or  before  the  20th  day  of 
**  April  next,  and  alfo  abide  their  legal  trial  for  fuch  their  treafons,  then  every 
"  one  of  them  fhall  (land  and  be  adjudged,  and  by  the  authority  of  the  prcfent 
"  ad  be  convided  and  attainted  of  high  treafon,  to  all  intents  and  purpofes  what- 
«*  foever  and  Hull  fuffer  and  forfeit  as  a  perfon  attainted  of  high  treafon  by  law 

"  OKghc 


(( 


(     78     ) 


*'  on^])t  to  futr-jr  and  forfeit  ;" — p.nd  which  ^^  Jlrjl  ground  of  dffmce,^^  taken  by 
\\\'i  Unitj'J  St.i!c;  oti  the  above  -xSi  of  attainder  and  confifcution,  is  fet  forth  in  the 
obfcrvatioirj  on  the  re))ly  as  follows,  viz.  "  The  claimant  has  ftated  in  his  reply, 
"  that  it  is  not  to  be  difputed  or  denied  in  this  cafe,  that  the  legiflaturcof  Pennfyl- 
'•  vania  proceeded  againll  the  claimant  as  an  tuhuh'itam  or  fuhjeH  of  Pennfyhanlaj 
"■  and  ci^nfifcatcd  his  whole  ellate,  real   and  perfonal,  debts  included  ;  and  the 
"  loftillativf  aift  fxpreffos,  that  the  attainder  and  forfiiture  was   inflided   for  the 
crime  of  high  treafun."     "  That  tlie  State  of  Pennfylvania  in  paffing  the  ad  of 
attainder  and  forfeiture  againfl:  uindreiu  ylllen  the  claimant,  del'cribed  and  confi- 
dcrcd  him  as  a  ftihjef!,  is  apparent  from  the  words  of  the  aft.      If  he  had  not 
been  a  f.'.bjeft  of  Pennfylvania,  he  could  hot  have  committed  the  crime  of  trea- 
*^'  fon,  of  which  he  was  by  legiflative  aft  attainted.     That  legiflative  aft  is  itfelf  evi- 
'•  dcnce,  the  beft  and  highcft  evidence  of  his  being  a  fubjeft  of  the  State.      Such 
-'  faith  is  due  to  the  aft  of  a  leglflature  of  an  independent  State,  that  other  teftimony 
'*  of  the  fafts  contained  in  it,  is  not  to  be  required.     On  the  aft  of  attainder  and 
■«'  forfeiture  therefore,  the  agent  for  the  United  States  might  reft  as  fufficient  proof, 
*'  that  the  claimant  was  a  fubjeft  of  Pennfylvania.      i\ware  of  this,  the  general 
agent  for  claimants   has  advanced  the  extraordinary  pofition — that  the  treaty  of 
peace  is  the  only  point  of  time  from  which  agreeably  to  the  Bvitiih  conftitution 
and  laws,  the  United  Stntes  ceafed  to  be  a  part  of  the  Britiih  empire. — Accord- 
ing to  thii  doftrinc,  Pennfylvania  was  not  an  independent  State  until  the  peace, 
for  fhe  could  not  be  an  independent  State  while  flie  remained  a  part  of  the  Bri- 
tiih  empire.     According  to  this  doftrine  her  legiflative  afts  prior  to  the  peace, 
are  not  to  be  regarded  as  tiie  afts  of  an  independent  State. — This  pofition  being 
important  to    the  juft  decifion  of  this  claim,   fliall  be  examined.     "\Vhc...  the 
United  States  became  independent  and  took,  their    place    among   the   nations 
"  of  the  earth,  is  a  matter  not  to  be  determined  agreeably  to  the  Britifh  confti- 
'*  tution  and  laws,  but  agreeably  to  the  laws  of  nature   and  of  nations.     /«  fatl 
'*  they  luerc  independent  fj  early  as  1775'   "^"^   '"'  ^'^^  ^'"^''  glorious  and  r.'.cmorallc 
*'■  fourth  of  July  1776,  they  folemnly  and  formally  declared  to  the  world  they 
*'  were  independent,  and  from  that  period  have  maintained  their  independence  with 
**  honor  and  profperity. — Prior  to  the  treaty   of  peace  they  made  treaties  of  alli- 
*'   ance.   commerce  and  navigation,  and  were  thus  publicly  recognized  by  foreign 
"  powers  as  an  independent  nation.     They  carried  on  ivar,  they  made  laws  for 
**  their  own   government,  and  did  every  other  aft  of  a  fovereign  power.      The 
*'  formal  ackno'-jdcdgimnt  by  his   Britatmie  majefly  added  nothing  to  their  real  hide- 
'*  pcv.denc:,  and  if  the  treaty  of  peace  had  never  been  made,  the  United  States 
**  would  have  aftually  continued  an  independent  nation  though  at  war  with  Great 
' '  Britain  to  this  moment.     What  is  it  the  United  States  were  incompetent  to  do  as 
"  a   fovereign    power,    between   the    4th    July    1776,    and  the   3d   September 
*'   17B3,  which  they  can  now  do  ?  *  Every  nation  that  governs  itfelf  under  what 
'  form  focvcr  without  any  dependence  on  a  foreign  power  is  a  fovereign  State,  its 
•  rights  arc  naturally  the  fame  as  thofe  of  any  other  State.      Such  are  moral  perfons 
«  who  live  together  in  a  natural  fociety,  under  the  law  of  nations.     To  give  a 


«( 

•  « 
<  < 
« 


•  nation 


(    79    ; 


r./t' 


<  tiou  .1  ii-,!.i  to  ir,..k.'  an  i"iu.ricdi;;tj  figure  i:i  tliij  gra'.d  fjci'jty,  i' 
it  it  b'j  rc.tlly  luvereign  and  independent,  t!.at  i:.,  i^  niulb  pc-,.i,;  icrs;it' by  ii*. 
own  authority  '  ViUttl  B.  i.  i'.  4.  ♦  When  a  nation  bjconuD  divided  lau 
*\\'o  parti*:3  abfolutcly  iDd'.'pcndcnt,  and  no  longer  i"';:no\vlcdjjin2  a  corr.nnn 
fapcrior,  th:;  State  h  dilfoived,  und  th.e  v/ar  betwl-:-.  the  two  ijuriicg  i;i  evciy 
rclpc'ii  13  t!ij  fame  willi  that  or"  a  pv.blic  v/ar  b:^.\/eja  two  difFcrcnr.  nations.'  //. 
<'.  3.  6'.  2fy5 — "  Applying  theft;  palfagf.s  to  tl..:  f:iuation  of  the  Britilh,  em^ifrt 
'  v.'hcri  the  American  colonic:  icparated  fr-jin  Ctcut  I'atain,  <lc:!ar'nij  !/.i!r  in:h'- 
fcnJiiice  ami  malnUiiuing  ii  ly  thcj'vjonl,  tlicy  prove  tha  fcvcral  Ur.i'.id  Slulcs  tj 
have  been  intlependent  as  early  aj  tiie  f'.urlh  of  Jul,'  1776;  that  Jay  is  th.i 
anniverfary  of  th-jir  fovercignty,  and  as  fach  celebrated  in  every  part  of  thi.- 
country.  In  the  year  1776,  the  States  generally  fjrn^.cd  tnJr  cinfJtutioriS;  o»- 
government,  fonie  of  wluch  rcn:ain  to  thi';  moment  urahereJ  ;  and  are  confi- 
dered  as  the  p.aliadiuni  of  their  rights,  the  fource  of  idl  lawful  av.thcrif). 
Even  in  Wellminftor  hail  the  judges  have  frecpuently  declared,  that  tlie  aels  of 
the  legiilatnres  of  the  feverai  States  which  v/ere  paflcd  dari'r;  the  \r.<t  wv.v, 
could  be  regarded  by  them  in  no  other  light  tljan  acts  of  independent  States. 
Though  Andrcio  jllLn  after  being  a  fubjed  to  Pennfyl/aniayo/.ifi/  iha  Er'u'ijh 
forces  in  Decembi-r  177^),  and  returned  to  his  naiural  aUegian:^  this  did  not  dil- 
folve  the  right  of  Pennfylvania  to  hold  him  as  iti  lubje^f,  and  ..s  its  fiibje^^  to 
puniOi  hin\ :  Having  done  this  by  a  Icgiflative  adt,  it  only  remains  tc  be  ccn!i- 
dered>  whether  that  adf  v  -  repealed  as  to  debts,  by  the  fourth  article  of  th'j 
treaty  of  peace.  The  agenc  for  the  United  State",  cuntcnd-j  that  it  waj  net, 
and  that  the  debts  forfeited  for  treafon  during  the  war,  were  not  embraced  b*' 
that  article,  becaufc  Andrew  Allen,  and  all  otiiers  in  the  like  predica:5:ent, 
were  civilly  dead  as  to  the  United  States,  and  were  not  creditors  when  th; 
treaty  of  peace  was  concluded,  of  the  debts  that  had  been  forfeited.  Th? 
ftipulaiiou  that  creditors  on  cither  fide  lliall  meet  with  no  lawful  impediaiont 
to  the  recovery  of  the  full  value  in  fterling  money,  of  all  lonafdc  debts  here- 
tofore contrac4ed,  does  not  include  pcrlbns,  who  as  fuljetls  had  "become 
deprived  of  their  eftates  and  debts  for  their  criminal  comlucl ;  Andre- j 
Allen  having  joined  the  American  fide,  as  is  proved  by  the  highell  evidencej 
the  legiflative  ac^  of  Pennfylvania,  and  having  deferted  it  and  thereby  incurred 
a  forfeiture  of  all  his  lights,  is  in  no  point  of  vicv/  to  be  confidered  as  a  creditor 
on  the  Britifiifide.  To  conclude,  the  firil:  ground  of  defence,  if  the  legiflativr: 
ait  of  attainder  and  forfeiture  paflcd  by  Pennfylvania  on  the  6th  of  March  1 778  - 
is  to  be  confidered  as  an  ad  of  a  fovereign  independent  State,  it  is  conclidive  proof 
that  Andrew  /llk.i  was  once  a  fjbjedt  of  Pennfylvania  and  had  forfeited  his  eftate 
including  his  debts  prior  to  the  treaty  of  peace,  for  his  criminial  cotidut^  as  a  fub- 
jecTt.  If  as  a  fubjecl  he  was  attainted  and  punifhed  by  the  lofs  of  his  debts  the 
treaty  of  peace  did  not  nnnul  the  legiflative  \x&.  of  forfeiture,  and  relbre  to  him  .1 
right  to  recover  his  fo.icited  debts.    If  the  treaty  of  peace  did  not  rellore  to  him 

*  a  right  to  recover  fuch  forfeited  debts,  there  has  been  no  lofs  proceeding  from  a 
^  violation  of  it,  for  v/hich  he  is  entitled  to  claim  before  the  Board  under  the  treaty 

*  of  amity."     And  in  the  following  paffage  in  a  Aiblequent  part  of  the  paper — 

'«  The 


Ill'" 


(  80  ) 

«  Tiic  plalntiitb  in  this  cafe  ( H cm:  J  tons  vs,  Eaton)  were  allowed  by  a  law  of 
««  North  Carolina,  together  witli  others  fimilarly  circumftanced,  the  option  of 
«  t  iking  an  oath  of  atlcgiancc  to  die  State  or  of  departing  it.  They  chofe  the 
««  liircr  and  were  n-vcr  regarded  as  fubje.5>3  of  the  State.  Their  confifcated 
♦'  dc'^t's  they  have  been  adjudged  to  be  capable  of  recovering  of  their  debtors. 
«'  It  is  not  to  b'.  denied,  that  the  Chlsf  JuJUce  Elfworib  in  delivering  hisfen- 
"  timcnts  on  this  cafe  does  llrongly  imply,  if  the  plaintiffs  had  been  claimed 
*<  an/holden  as  citizens,  and  for  "their  crime  had  been  deprived  of  their  debts, 
*«  that  they  could  pot  liave  recovered  them  under  the  treaty  of  peace.  This 
«'  opinion  the  agent  for  the  United  States  confiders  as  a  very  refpcftable  fup- 
<•■  port  of  th:  firtt  ground  of  defence  taken  in  this  claim  ; — upon  all  occafions  the 
"  chief  juftlce  has'been  ready  to  allaw  the  fullelt  force  of  the  treaty  of  peace 
*'  v.pon  cafes  within  it,  and  if  dJjts  forfeited  for  treafon  are  not  in  his  opinioa 
«'  recoverable  in  the  federal  court,  it  can  only  be  becaufe  he  thinks  they  are  not 
*'  within  the  operation  of  the  treaty,  for  if  they  were,  it  is  difficult  to  afTign  a 
"  reafon  why  they  fhould  not  be  recoverable  at  law,  as  well  as  debts  confifcated 
"  by'ri"ht  of  wa/." — In  aid  of  which  argument  two  letters  have  been  produced 
from  a  fearncd  judge  of  the  United  States  (Patterfon)  to  the  agent  for  the  United 
States,  in  anfv/er  to  his  enquiries  refp':£ling  the  nature  and  import  of  certain  dc- 
cifions  therein  mentioned,  one  of  which  letters,  recited  in  the  ohfcrvattons  dated 
the  27th  day  of  May  lait .  gives  an  account  of  the  cafe  of  Mutter  and  Hamilloiu 
auainft  Moore  therein  mentioned,  as  follows,  "  The  declaration  ftates  that  ji.  and 
*"  "'  j^  Hamilton  arc  fuljeils  of  the  king  of  Great  Brila'tn.  The  defendant  pleaded 
that  the  nlaintifls  are  on  the  confifcatton  aft  of  North  Carolina,  an'^  ^..^.yment  to 


4C 


»  the  commiflloners.  The  plea  ftates  that  the  faid  ^.  and  ;/.  Hamilton  were 
«'  inhabitants  of  North  Carolina,  and  continued  to  be  fo  until  September  1777. 
<«  To  this  plea  the  plaintiffs  demurred.  I  well  remember  that  it  was  urged  by 
«  Mr.  Noel,  one  of  the  counfel  on  the  part  of  the  defendant,  that  all  in/jabitan's 
*'  hcame  cilzens  hy  the  declaration  of  independe!,ce.  On  this  point  the  court  gave 
««  no  opinion,  it  was  not  necelTary  ;  the  cafe  did  not  require  it.  As  it  was  ad- 
««  mitted  by  the  pleadings  that  J.  and  J.  Hamilton  were  inhabitants  of  North 
««  Carolina  on  the  4th  of  July,  1776,  and  continued  to  be  fo  till  September  1777, 
«  a  period  more  ti  n  r.i*^"ient  for  ihem  to  make  their  election  agreeably  to  the  law 
«*  of  nations,  I  covftderzd  them  as  citi-zens  of  North  Carolina,  and  not  as  fubjeas  ofihc 
king  of  Great  Britain.  So  the  law  appeared  to  me  as  ariflng  on  the  fafts  de- 
tailed in  the  pleadings.  In  my  judicial  capacity  I  was  obliged  to  take  the  cafe 
from  the  declaration,  plea,  and  demurrer  :  but  I  intimated  more  than  once  the 
p'-opn'ety  of  moving  to  amend  the  proceedings.  It  was  not  done.  The  decifion 
pafTed  againft  the  plaintiffs.  I  cannot  undertake  to  fay  of  what  opinion  the 
court  would  have  been,  ;/  the  plaintiff's  had  replied  that  thry  nvere  ffhje&s  of  his 
Britannic  maje/ly,  and  alfo,  the  treaty  of  peace."— The  diftindtiori  between  a 
Britifh  fubjcft,  refiding  in  England,  and  an  American  Britifh  fubjeil,  nevei 
entered  my  head.  The  only  enquiry  was,  whether  it  fufficlently  appeared  on 
the  pleadings  that  the  plaintiffs  were  Britifh  fubjefts  and  could  avail  themfelvea 
^'oi^^^tr,.ty.-  RESOLVED 


u 

tl 

« 

(( 

(t 

it 

«( 

i< 

«c 

*t 


4 


(     8i     ) 

RESOLVED  cu  the  fuid  <■'  frjl  ground  of  dcfsr.:c;'  and  lekrvlnr;  ihc  otl.ei' 
points  in  the  cafe,  that  it  becomes'  the  Board  to  refrain  from  all  obfervation  oii 
the  ^^rtfra/ queftions  fuggefted  in  the  above  argument ;  namely,  whether  a  pait  of  a 
nation  becomes  independent  of  the  government  which  had  been  ellabliflied  over  the 
whole  merely  by  declaring  itfelf  to  be  fo,  and  fupporting  fuch  declaration  "  by  tht- 
"  fword?" — whether  a  part  of  a  nation  by  thus   "  carrying  on  war"   againft  thai 
which  had  till  then  been  maintained  :.s  the  government  of  the  whole  ;  "  making 
«•  laws  for  their  own   government  ;  .\nd  doing  every   ad  of  a  fovereign  pow- 
«<  cr,"    doas   truly  become   a  fovereign  power  ? — whether  the  alTertion    be   well 
founded,  that  "  the  formal  acknowledgment  by  his  Britannic  majelly  added  nothing 
«  to  the  r^«/ independence  of  the  United  Stages  ?" — what  woald  have  been  the 
cafe  "  if  the  treaty  of  peace  had  never  been  made  ?'— whether  "  the  United 
"  States  would"   nave  aaually  continued  an  "  irdependcni  nation  though  at  v/ar 
««  with  Great  Britain  at  this  moment  ?"— and  how  far  "  the  celebration  in  every 
"  part  of  the  country  of  the  ever  glorious  and  memorable  4th  day  of  July  1776," 
(according  to  the  language  made  ufe  of  before  the  Board)  "  as  the  anniverfary  ot 
"  their  fnvereignty"  can  affeft  the  prefent  cafe  ? — that  the  Board  diink  it  fit  alfo 
to  refrain  from  all  obfervation  on  the  cafe  which  is  in  fubltance  put,  of  an  uncondaiomil 
Juhmiljion  on  the  part  of  Great  Britain  to  the  independence  of  the  United  State:;, 
and  I0  ail  thai  had  been  done  under  the  authority  they  e>cercifed  ;  becaufe  the  cafe  fo^ 
put,  iji  not  th^  cafe  which  adually  exifb ;  there  having  been  no  fuch  unccndiiicnui 
fubnv.ifion,   or  acknov/ledgment  of  the  independence  of  the  United  States  on  the 
part  of  Great  Britain,  but  a  recognition  by  lolemn  treaty,   containing  reciproud  Jli- 
pulations,  as  the  price  of  peace,  and  for  the  mutual  benefit  of /Wj  countries: — tliat 
iis  it  has  however  been  maintained  in  the  Board,    that  the  independence  of  the 
United  States   was  complete  even   as  againlt  Great  Biitain  before  the  treaty  of 
peace,  it  cannot  be  improper  to  Hate,  the  Imprcffions  entortaiocd  on  that  important 
fubjod  by  judges  of  great   name  and  authority  in  the  United  States,  from  thcji 
opinions  judicially  delivered,  and  as  the  fame  are  recited  and  referred  to  in  the  paper 
read  by  M.     Sitgreaves,  and  put  on  the  minutes  of  the  Board  on  the  19th  day 
of  February  lail,  in  the  cafe  of  ihc  Right  Reverend  Charles  JngUs  : — That  in  the 
cafe   of  IVarre  admini 'Orator  of  Jrmes  againd  Hyllon^  decided  in   the   fuprcme 
court  of  the  United  Str.;es  in  February  1796,  Judge  Chase,  in  dating  the  out- 
line of  reciprocal  Jlipulatk II  conta.ned   in  the  treaty  of  peace,    expreires  hinifelr 
as   follo'.vs,  "  I  will   now  proceed  to  the  confideiatio'   of  the   treaty  of  1783. 
"   It  is  evident  on  aperufal  of  it  what  v/cre  the^?n'a/and  principal  objei^^s  in  viev/ 
»  by  both  parties.     There  were  fo::r  on   the  part  of  the  United  States,  to  wit, 
"   Firjl,  An  achnonvU'dgment  of  their  indcpsruhnce  by  the   croivn  of  Great  LriUi'.u. 
♦'  Second,   A.   fcttlcment  of  their  weftern  bounds.      '1  hird,  The  right  of  iilhery. 
<*  And  furth,    i  he  free  navigation  of  the  MilTiifippi.     There  were  three  on   the 
«<  part  of  Great  Britain  '■  &c.   the  recovery  of  debts  provided  for   by  \.\vz  fourJ} 
article  being  referred  to  as  the   firfl  of  thele   three  objecfs— and  another  learned 
judge  of  the  United  States  {PrJerfun)  whcf^:  opinion  in  the  faid  cide  is  alio  recited 
in  the  fiime  paper,  obfttves  as  follows — *'  The  traders  and  others  of  this  countiy 

L  "  'Acr-; 


-?  -■ 


y-aeejsr,  »"*,»i,,  „,^-^ 


]^tj^-i  -ji^>-"    -  ^ 


•  r^^kj^^-^  ^E 


.«( 

*( 
n 
(( 
«( 
(( 
« 
<( 


.  (      82      ) 

"  were  largely  indebted  to  the  merchants  of  Gre.it  Brka'-n,     To  provide  for  pay- 
«'  ment  of  thcf  debts,  and  glvo  fatisf^aion   to  this  clafs  of  fubje6>s,  muft  have 
been  a  malrcr  oJ  primary  imuortance  to  the  Britidi  minilh-y.     This  doubtlefs  is 
at  all  times,  and  in  all  fituation?,  an  objeft  of  moment  to  a  commercial  country. 
Thconulcnce,  rcfources  and  power  of  the  Britidi  nation,  may  in  nofmalldegice 
be  afcribed   to  its  commerce  :   it  is  a  nation  of  manufaaurers   and  merchants. 
To  protea  their  intercfts   and  provide  for   the  payment  of  debts  due  to  them, 
efpecially  when  thofe  debts  amounted  to  an  immenfe  fum,  could  not  fail  of 
anefHng  the   attention,    and  calling  forth  the   utmoft  exertions  of  the  Biitifli 
cabinet.     A  meafure  of  this  kind  it  is  eafy  to  perceive   vvou'd   be  pnrfued  with 
unremittin?^  diligence  and  ardor.— Sacrifices  would  be  made  to  enfurc  us  fucceis, 
--  and  perhaps  nothing  Hiort  of  extreme  necelTity  would  induce  them  to  give  it  up." 
— Conclufions  which  arc   not  weakened  by  the  confideration,  that  although  it  ir, 
tiuc  the  greater  part  of  the  "  hmienfe"  debt  thus  provided  for,  was  due  to  Bntifh 
merchans,  part  of  it  was  alfo   due  (in   the  language  of  the  treaty  of  amity)   "to 
«  others  his  m?ijefty'sfubjec^s."— That  another  learned  judge,  whofe  opinion  in 
the  cafe  of  M'Call  ngahi/l  Turner,  was   publiflied  at  full    length,  and  fpecially 
referred  toon  the  part  of  the  United  States  in  tiieir  printed  anfwerto  the  claim  ot 
WiU'tam  Cunnw-ham  and  co.  namely,  judge    Pendldm,  exprefled  himfelf  in  the 
Vlrghiia  ccnveraion  (of  which  he  was  prcfident)  when  debating  on  the  adoption  oh 
•the  federal  conlHtution,  as  follows  :  "  Congrefs  were  empowered  to  make  war  and 
"  peace.     A  peace  they  made,  ghks  us  ths  great  objea,  mlfcndence,  and  yield- 
"  in-T  us  a  territory  that  exceeded  my  moft  {iinguine  expeaations.      Unfortunately 
«'  a%iglc Magrecabk  clcmfe,  not  the  objea  of  the  war,  has  retarded  the  perform- 
«  ance  of  the  treaty  on  our  part.— Congrefs  could  only  recommend  its  perform- 
«'  ance,  not  enforce  it."— That  in  order  to  determine  the  prefent  quelhon    ±e 
Bo.ird   have  only  to  apply   the  plain  and  unambiguous  terms  of  the  laid  fourth 
article    for  which  «/7fr£/?f^j"  were  thus  held  to  have  been,  and  certamiy  were 
made  on  the  part  of  Great  Britain  ;— and  that  the  terms  thereof  arc  plain  and  un- 
ambiguous ftands  confirmed  by  the  refpeaable  authority  already  referred  to.     «  On 
«  the  beft  inveftigation  (fays  judge  Chafe)  which  I  have  been  able  to  give  the 
*«  fourth  article  of  the  treaty,  I  cannot  conceive  that  the  wifdom  of  man  could 
«  exprefs  their  meaning  in  more  accurate  or  intelligible  words,  or  in  words  more 
«  proper  and  effeaual  to  carry  their  intention  into  execution"— and  judge  Pater- 
/•Jexprefles  himfelf  thus— «  The  phrafeology  made  ufe  of  leaves  in  my  mind  no 
«  room  to  hefitate  as  to  the  intention  of  the  parties.     The  terms  are  unequivocal 
«  and  M«iw//a/ in  their  fignification,  and  obvicufly  point  to,  and  comprehend  ^// 
«  creditors,  and  all  debtors  previouQy  to  the  sd  September   1783.      In  this  article 
«  there  appears  to  be  xfekaion  of  exprejfton,  plain  and  extenfive  in  thur  import, 
«  and  admirably  calculated  to  obviate  doubts,  to  remove  dithculties,  to  defignatc  tlr- 
««  obieas,  and  afcertain  the  intention  of  the  contendmg  powers.  —*«  1  he  words 
«  creditors  on  either  fide  embrace  every  defcription  of  creditors:^"  ^H  creditors 
«  on  either  fide  without  di/iinaion  muft  have  been  contemplated  by  the  parties  m 
«  the  fourth  article  :  Almoft  every  word  feparately  taken  is  expreflivc  ci  this  idea, 
•^  *'  and 


(     83     ) 

"  and  when  all  the  words  are  combined  and  taken  together,  they  remove  every 
"  particle  of  doubt." — That  the  fame   imprefTion   of   the  ample,  comprehenfive 
and  unreilrained  force  of  the  faid  fourth  article,  is   further  confirmed  by  another 
learned  judge  (Sitgreaves)  in  the  opinion  delivered  by  him  in  the  cafe  of  Haiullton 
avainjl  Eaton,  in  June  1796,  alfo  referred  to  and  recited  m  the  abovem'.:r.uoned 
paper,  entered  on  the  minutes  of  the  Board  in  the  cafe  of  Ingl'is  ;  the  faid  learned 
judge,  in  itating  the  general  and  unlimited  import  of  the  expreiTion  "  all  creditors 
071  either  fide'^  in  the   {x\A  fourth  article,  where  no  other  d'ftinftion  of  pevfon  or 
charaifter  was  intended  than  that  of  being  on  the  one  lide  or  the  oth'  r  at  the  peace, 
havina  therein  referred  to  the   feveral  diftimftions  of  charafter  anxiouHy  marked 
out  in  the  very  next  article,  viz,  thtjifhy  where  fuch  diilindons  were  intended, 
(but  \vh\c\\fftb  article  has  no  relation  to  the  recovery  or"  the  debts  fjcuied  by  the 
fourth  article)  as  follows: — "  The /owr//;  article  contains  the  only  Uipulatioi;  witfx 
"  refpedl  to  debts  in  the  whole  inftrument.     It  is  mutu  J  and  genc.-iil  in  its  exprei- 
"  Con,  not  limited  or  reftrained  by  any  particular  words  to  any  defcriptlon  of  pnfonu 
*'  as  is  evident  in  the  ffth  article.     If  that  had  been  in  the  contemplation  of  tiie 
«*  parties,  they  could  not  have  overlooked  the  neceiTity  for  thefe  diftinftions,  nor 
*•  are  we  at  liberty  to  prefume  it.     In  the  next  article,  the  diftindion  is  made 
**  with  great  accuracy  with  regard  to  thofe  who  endeavor  to  procure  a  reftitution 
*«  of  their  lands  and  other  property  :" — That  the  extent  equally  unlimited  of  the 
expreffion    '  iaivfid  impedments'"  is  likewife  referred  to  and  explained  by  the  fame, 
and  other  learned  judges  of  the  United  States,   whofe   opinions  are  quoted  in  tlie 
abovementioned  paper,  in  the  cafe  of  Ingl'is,  judge  Chafe  having  exprcfTcd  himfelr 
on  that  fubjeft  as  follows — ^^  Shall  meet  luith  no  lawful  impediment ;""  thatis,  "widi 
•'  no  obftacle  (or  bar)  arifingfrom  the  common  laiv,  or  a6ts  of  parliament,  or  afli 
**  of  coiigrefs    or   acfts   of  any  of  the  ?':ates,  /•'''.•i   in  txylcnce .   or  thereafter  to  be 
"  made,  that  would  in  any  vuinner  operate  to  prevent  the  recovery  of  fuch  debts  as 
*•  the  treaty  contemplated.' — "  The  prohibition    hat  no  lawful  impediment  Ihall 
«*  be  interpofed  is  the  fame  as  that  ail  lawful  impediments  fhall  bfc  removed.     The 
"  meaninrr  cannot  be  gratified  by  the  rem^Ta"l  of  (  ie  impediment  and  leaving  ano- 
"  ther  ;  t.^ii  a  fortiori ^  by  taiiing  away  the  kls    and  ieaving  the  greater  ;  thefe 
*'  word''  have  both  a  rHrofpeSi<ve  and  future      peft.'' — Judge  Patei  "  n,  "  The 
"  words  ihall  meet  with  no  lanxful  ihpeiUUicnt   refer  to  legiilative  .cts  and  every 
«•  thing  done  undiv  thcm^  fofar  as  the  ere '".Lor  may  be  nff'8ed  or  ohfiruHi'd  in  ngard 
♦*  to  his  remedy  or  right.     All  lawful  nTspediinents  of  whatever  kind  they  might  be 
*'  v/hether  they  related  to  perfonal  dijabilitiesy  or  conf [rations y  Sec.  are  removed. 
*'   No  aR  of  any  State  k;- •feature  Ihali  obic.acc  the  creditor  in  his  courfe  of  reco- 
*'  very  againfl  his  debtor." — Judge  Cfhing,   the  words  *■'■  fonU  meet  with  no  lr:W-^ 
"  ful  impediment,'"  are  as  ftrong  as  the  wit  of  man  could  devife  to  ''no'ul  all  effects 
««  of  fequeftration,  confifcation,  or  any  ohjlacle  thrown  in   the  way   by  any   law 
*»  part-cular!y  pointed    againit   tie     iccovery   of    fuch    debts." — And    to  ftiev/ 
that  a  lawful' lar    dimept  might  oerate  widiin  the  measing  of  the  treaty,  ihor.gh 
there  Should  b'  hgal  deb:  at  the   date   rf  the   treaty  of  peace,  judge   Wilfon^ 

obferves,  that  u.._/ot/r/.4  article  ««    ■    lot  confined   to   debts  fx?/?/>if  at  the  time  of . 
-»■  makin  f  uie  treat^',  but  is  extend  •■    o  debts  iheretoftre  contratled," 

i  hat 


(     34     ) 


Tint  iiK'  ■i:i-^ztihv...\  tiras  gifv.i,  fricc  :he  irc.iiy  of  am'ry,  viz.  in  t'nc  year  179(1> 
Iv  tho  LanieU  jiulges  oi  t!i:  United  Sr.t:a  above   mimed,  corrcfponds  v/itii   the 
.c-\\\nop  wli'tch,  on  nnt'ii\;  deliberation,  the   Boaid  iiavc   ck"'.r!y  lOrmcd  on  this 
{\X>'.Ci,  and  v/hicli  i!:?y  iiov/  declare,  vi^. 


'i'hra  ihe  fum:  iun.rjr.ier.t:,  by  tliey'r/;  avt'.c!c  v/hcrcof  Iiis  Brittannic  majcfty  on 
\\\.:  \i  day  of  vSeptcmbcr  17B3,  "  acknowledged  the  United  States''  (net  to  hdvc 

to  tlie 


i»o:n  from  the  Ath  dav  of  Ji'W  I'-nO,  but)  "  tobs^vcz,  fcvereian,  and  indei: 
•«  otatcs;  that  lie  trc;itCvl  with  tiicni  as  fjch    and  rclinq-aillicd  all  claims 
"  ;>ovcrnmcnt,  propri>.ty,  and  territorial  rights  of  the  fame,"  provided  aifo  in  effect 
by  the  mutual  (tipulation  in  favor  of"  creditors  on  either  fia'e^"  contained  in  the, 
f.::irll}  artic'"  thereof,  th'.t  no  ail  v.'hich   had   then  been,  or  fliould  thereafter  be 
done  or  palfed,  by  or  under  the  authority  of  the  faid  United  States,  or  any  of  them, 
whr.tevcr  might  be  its  form   or  import;  v/hatevcr  the   terms  therein  employed; 
whatever  the  extent  of  pov/cr  thereby  affiimed  or  declared  ;  whatever  the  charader 
fi]:i\'hy  afcribed  to  the  individual  againft  whom  it  was  directed,  fiiouid  be  fuffered  to 
operate  as  a  lawful  impediment  to  the  recovery  of  debts  '•  theretofore  contraded" 
to  a  creditor  on  tine  fide  of  his  Britannic  majeify  at  the  date  of  the  faid  treaty:   Nor 
can  the  objccflion  be  flipported,   that  the  above  interpretatioii  v/ould  extend  to  the 
ordinary  opcraticn  nf  criminal  lanu  in  cafes  of  felony,  and  fuch  other  ofFencca  as  did 
not  arife  from  the  part  taken  by  individuals  during  the  war  ;  for  ^       ordinary  ope- 
ration of  criminal  law  thus  fuggefted  as  the  ground  of  an  objcf  ..  i.,      as  no  relation 
whatever  to  the   fubjcia  matter  of  the  faid  article  : — That  in  t         •    of  the  Right 
Reverend  Charhs  In^/is,  the   Board  by  their  unanimous  refoluL.       of  the /w-j.i/v- 
firj  day  of  May  i79y>  determined,  that  an  aft  of  the  State  of  Nev/-York  paficd 
during  the  war,    attainting  the  fliid  Charles  Itiglis  for  the  \m^\x\.c6.  crime  nf  adhtring 
t-j  his  Britannic  majejly  was  a  lawful  impediment  within  the  meaning  of  the  treaties; 
the  only  difference  between  that  cafe  and  the  prefent   confining  in  the  diflerent 
words  of  defcription  contained  in  the  two  feveral  adls; — but  as  the  afl  of  the  State 
of  Pennfylvanki  cannot  have  any  greater  effeft:  or  operation  againft  the/o«r//S  article 
of  the  treaty  of  peace  than  that  of  New  York,  and  as  the  fact  charged  to  be  a 
crime,  viz.  adherence  to  the  caufe  of  his  Britannic  majefty  is  the  fame   in   both 
cafes,  the  mere  words  of  defcription  ajfumed  in  the   ad;  of  Pennfylvania,  cannot 
prove  ngairjl  the  true  character  of  the  party  as  a  Britifli  fubjed,  or  give  efficacy  to 
itfelf,  fo  as  to  take  th       '2  out  of  the  meaning  and  operation  of  the  laid  article  : — 
Nor  does  it  appear  how  aie  claimant  became  lawfully  fubjeded  to  that  State  any 
more  than  the  faid  Charles  Inglis  to  the  State  of  New   York,  or  the  former  lefs 
entitled  to  the  charader  of  Britifh  fubjed  than  the  latter  : — That  all  general  argu- 
ment on  the  declaration   of  independence,  and  the  efFed  of  ads  done  under  it, 
whether  by  the  law  of  nations,  or  by  virtue  of  the  alledged  retrofped  of  the  above 
recognition  by  the  treaty  of  peace,  is  therefore  precluded,  fo  far  as  regards  tlie 
prefent  fubjed,  by  the  plain  terms  of  a  pofttroe  compaEt: — That  the  comprehenfive 
exprelTion  "  creditors  on  either  ftde"  contained  in  the  fourth  article  of  the  faid 
treaty,  unrejrained  l>y  exception,  by  defcription  of fpecitil  charader,  or  refiriBion  of  any 
kind,  was  evidently  feleded  for  the  very  purpofe  of  avoiding  all  doubts  or  difficulties, 

which 


(     Si     ) 

xvhlch  mlgli';  cil'.crvvirc:  \.:v:z  'o::n  raifcil  upon  nKix  dilniKnions  &f  char.K^er,  a3  (with 
rcfcrenccVD  r  diilbrent  fubica)  are  nnxiouQy  delineated  in  the  arlicle  immediately 
followi'.:;; : — Tiiat  if  the  claimant  could  be  faid  to  have  at  ary  time  !>7a,:L-  his  eu'CIicr} 
i-i  i'.v.jr"  of  ti-.-:  United  States  under  the  declaration  of  independence,  and  fo 
tiepiuied  fo.  a  'ui;v.c  fubfccpucnt to  that  event  from  hi'  nr.tivc  aikfiancci,  (the  contrary 
ofwhicii  appears  to  have  been  the  cafe)  his  leturn  to,  and  havinsi  been  on  thrpb 
of  hi?  fiid  native  allegiance  at  th:  peace,  would  have  ficured  to  him  the  benefit  c^ 
the  ^M^i  fcurtk  arr.clc  of  the  treaty. — ^I'hat  accordingly,  having  been  on  the  fide 
of  his  Britannic  n.ajcfty  at  the  date  of  the  treaty  of  peace,  and  bcin;;  a  natural  born 
riibjeci  of  liis  faid  majelly,  not  barred  by  the  acceptance  of  citi^enihip,  from  the 
ri^ht  of  claiming  pgainil  the  United  States,  the  claimant  is  entitled  under  the  tre,:ty 
of  amity,  to  complain  to  this  Board  of  the  faid  ad  of  attainder  and  confifcation 
before  recited,  as  being  a  laiuful  hr.ptdmmt  within  the  d^fcription  of  \W(i  fourth 
article  of  the  featy  of  peace,  and  the  fi:<th  article  of  the  treaty  of  amity,  to  the 
recovery  of  fuch  debts  ^s  he  (hall  prove  to  the  fatistadion  of  the  Board,  withia 
the  meaning  of  the  faid  treaties  : 

And  in  regard  to  the  ftatcment  before  recited  of  the  agent  for  the  United 
States,  which  has  been  referred  to  in  the  Board  as  follows,  "  even  in  Weflmin- 
"'  fkr  hall  the  judges  have //vyrv^n/zy  declared,  that  the  ads  of  the  legiflatures 
♦•'  of  the  fcveral  States  v^'hich  were  pafled  during  the  late  war,  could  be  regarded 
'«  by  them  in  no  other  light  than  afls  of  independent  States."  That  no  cafe  has 
ever  occurred  in  the  courts  of  Weftniinfter  hall  where  die  above  general  propo- 
fition  wasfo  declared  ;  and  occafions  have  not /r^5^«v»p</).' occurred  for  confidering 
that  fubje(51: ;  nor  is  it  the  praflicc  of  the  judges  to  enter  upon  the  difcufTion 
of  matter  not  neceffary  to  tlie  termination  of  the  queftion  before  them  :  But 
whatever  has  been  faid  by  an-  of  the  judges  in  Weflminfter  hall  which  may  be 
held  as  applicable  to  the  pre'  .nt  queftion,  will  be  found  corredly  to  agree  with 
the  principles  and  conclufions  novv-  declared  by  the  Board  ; — the  faid  principles 
and  conclufions  containing  nothing  incoufiftent  with  that  perfcd  refpect  which  ic  due 
to  the  independence  of  the  United  States,  as  the  fame  was  recognized  on  the  part 
of  his  Britannic  majefty,  bythe/r/?  article  of  the  treaty  of  peace. 

And  the  faid  refolutlon  having  bcea  read  Mr,  Fitszimons  and  Mr.  Sit* 
GREAVES  withdrew. 

ExtraSedfrsm  the  proceedings  of  the  Board, 

G.    EVANS,    SSCRETARV. 


Commissioners' 


(     86     ) 


Commissioners'  Office, 

Philadelphia^  ^th  July,   I79<»» 

Present, 

Mr.  MACDONALD, 
Mr.  RICH, 
Mr.  FITZ SIMONS, 
Mr.  SITGREAVES, 
Mr.  GUILLEMARD. 


*.,, 


In  tbe  Ca/e  of  Dmhel  Dulany. 

Reafons  for  withdrawing  from  the  Board  on  the  ccafion  of  the  order  propofed  to 
be  made,  on  the  27th  of  February  1799,  ^"  *-^^s  cafe. 

I.  JJECAUSE  the  faid  propofed  order  appears  to  be  intended  to  carrv  in- 
to effefl  the  proceeding  in  this  cafe,  of  the  6th  Augu(t  1798,  notwithflandincr  the 
proteft  of  Mr.  FrTzsiMONS  in  relation  to  that  proceeding. 

2.  Becaufe,  from  the  preliminary  reference  to  certain  orders  of  the  14th  and 
'.8th  December  and  the  8th  January  laft,  which  orders  although  not  a/Tented  to  by 
us  were  not  then  deemed  of  fufficient  importance  to  induce  a  feparation  from  the 
Board,  there  is  giound  to  apprehend  that  our  prefence  on  fuch  occafions  has  been 
and  therefore  may  again  be  conftrucd  into  an  acquicfcence  in  the  validity  of  the 
proceeding  aforcftid  of  the  6th  Auguft  1798;  which  conftrudtion  we  deCrc  to  re- 
move and  to  avoid. 

'^.  Bicaufc,  being  perfeflly  fatisfied,  on  die  cLimant's  own  fhewing,  that  the 
treaty  of  amity  does  not  give  to  the  Board  any  cognizance  in  this  cafe,  we  are  de- 
rermined  not  to  participate  by  our  prefence  in  the  exeicife  of  a  power  which  we  be- 
lieve has  not  been  veiled  in  us. 

THOMAS  FITZ  SIMONS, 
S.  SITGREAVES. 

Jin 


(     87     } 


lii  the  fame  Cafe, 


Declaration,  by  Mr.  Sitgreaves,  of  the  reafons  fur  his  qVinion,  that  this  cnfc 
is  not  fubmitted  by  the  treaty  to  the  decidon  of  the  Board. 

/\S  I  was  not  a  member  of  the  Board  on  the  6th  of  AuT;uft  lafl ;  and  as 
no  occafion,  except  the  prefent,  has  fince  occurred,  which  I  deemed  to  be  proper 
for  the  explanation  of  my  opinion  on  this  cale  ;  I  now  defire  to  put  upon  the  mi- 
nutes fome  reafons  whicii  have  influenced  me  to  concur  in  the  third  propofition  oi 
the  preceding  declaration, 

This  claim,  as  I  collefl  from  the  averments  or  the  admiflion  of  the  claimant, 
appears  to  be  preferred  by  him  as  refiduary  legatee  of  i\nn  Taflcer,  for  lofs  wiiich 
he  alledges  that  he  has  fuftained  by  the  rcdudtion  in  value  of  the  refiduum  of  the 
prifonal  ellate  of  the  teftatrix ;  inafmuch  as  many  debts  contra(5ted  to  her  were 
tendered  to  the  executor  and  received  by  him,  in  paper  money  which  had  depre- 
ciated, and  which  is  faid  to  have  been  v/ithin  the  piovifions  of  an  adt  of  the  legiila- 
ture  of  the  State  of  Maryland,  paffed  in  1777,  whereby  it  v/as  cnaded,  that 
bills  of  credit  of  a  certain  defcription  "  fhall  pafs  current  and  be  received  in  payment 
<*  and  difcharge  of  all  manner  of  debts;''  and  futther  that  if  any  creditor  fhall  refufe 
to  receive  the  laid  bills  of  credit,  v/hen  tendered  in  payment  of  any  debt,  fuch  cre- 
ditor fo  refufmg  fhall  forever  be  barred  from  fuing  for  or  recovering  fuch  debt,  or  fo 
much  thereof  as  fhall  be  tendered  as  aforefaid,  and  the  faid  debt  or  fo  much  thereof 
as  llull  be  tendered  fhall  be  forever  extinguiflied;  and  if  after  fuch  tender  and  refu- 
fal,  the  creditor  fhall  re<^ufe  ori  demand  to  give  up  the  evidence  of  the  debt  or  to  giv^ 
a  difcharge,  it  fhall  be  lawful  for  the  debtor  to  fue  for  and  recover  his  damages  not 
exceeding  the  fum  due,  with  cofb  of  fuit. 

It  appears  that  Ann  Taflcer  the  original  creditor,  and  the  debtors  were  Inhabitants 
of  Maryland,  that  the  debts  were  contracfted  and  payable  in  Maryland  and  that 
Daniel  Dulany  the  elder,  the  executor,  was  a  citizen  of  Maryland  and  ib  continued 
from  the  date  of  the  letters  teflamentary  until  his  death  fmce  the  peace,  in  folvent 
circumftanccs,  fufficient  to  meet  all  pecuniary  refponfibility  on  account  of  his  exe- 
cutorfhip,  that  the  money  aforefaid  was  paid  to  the  faid  executor  before  the  peace, 
and  that  the  executor  accepted  the  laid  payments  in  difcharge  of  the  faid  debts,  and 
cancelled  and  delivered  up  the  obligations  and  other  evidences  thereof  or  gave 
acquittances  to  the  debtors. 

Neither  the  treaty  of  peace  nor  the  treaty  ofainity,  provided  for  the  retribution 
of  all  loffes  which  grew  incidentally  out  of  the  war.     The  flipulation  of  the  treaty 

of 


(     88     ) 


yi  peace,  is  fpacial  and  icllikled  to  creditors  only,  **  creditors  on  either  fide  fh; 
"  meet 'with  no  la^Afal  impediment  to  the  recovery  of  the  full  value,  in  fterli 


(I 


money, 


editors  on  either  fide  fiiall 
pediment  to  tne  recovery  ui  the  full  value,  in  fterling 
.uuu.^,  ofiill  bona  fide  debts  heretofore  contraacJ:"— The  fixth  article  of  the 
reaty  of  amity  reciting  that  "  it  is  alledgcd  by  divers  Britilh  merchapts,  and  others 
*•  his  majelly's  fubjeas,  that  debts  to  a  confidcrablc  amount,  which  where  bona 
*'  l.de  contracted  before  the  peace,  (till  remain  oninn^  to  them  by  citizens  or  inha- 
♦'  bitants  of  the  United  States,"  and  that  by  rcafon  of  lawful  impediments  fmce 
r.lie  peace,  the  re«overy  of  the  faid  d.-bts,  has  been  delayed  or  the  value  and  fecu- 
tity  thereof  impaired,  "  fo  that  by  the  ordinary  coiirfe  of  judicial  proceedings,  the 
• '  Br'ttyh  creditors  cannot  now  obtain  and  a flually  have  and  receive  full  and  adequate 
<*  coAipenfation  for  the  lofles  and  damage:?  which  they  have  thereby  fuftained," 
aipulates  that  the  United  States  in  all  luch  cafes  will  make  full  compenfation  for 
the  lame  to  the  faid  creditors ,  a  claimant  therefore  mull  be  a  Bri.'i/h^creditor  of  a 
debt  which  ftill  remains  civiti^to  him  by  a  citizen  or  inhiibitr.nt  of  th.e  United  States. 

The  principle  then,  which  is  afTamed  on  this  occafion   lies  at  the  root  of  the  claim, 
to  wit,  "  That  the  claimant    Daniel  Dulany,  a  Britiih  fubjedt,  became  immedi- 
♦'  ately  on  the  death  of  the  teftatrix,  Ann  Tafl<er,  as  refiduary  legatee  under  liei 
•*  wUl,  entitled  to  and  creditor  in  equity  in,  all  debts  dae  to  the  teftatnx  at  the 
"  time  of  her  death."— I  am  of  opinion  that  nothing  can  be  more  incorreft  than 
this  propofition;  that  the  converfe   thereof  is  incontcdably  true,   and  that  by  the 
known  and  ellablilhed  rules  of  law  and  equity,  all  the  right  and  intereft  and  powtr 
of  the  tcrtatrix.   in  and  over  the  debts  which  were  due  to  her,  devolved  upon  the 
e^iecutor,  who    from  the  moment  of  her  deccafe,  became  both  in  law  and  equity, 
excluf.vely  the  creditor   of  thofe  debts,  he  alone  could  lawfully  demand  paymtnt, 
inlHtute  faits  for  their  recovery,  or  give  acquittances  to  the  debtors,   the  reliduary 
legatee  could  do  neither,  the  releafeof  the  refiduary  legatee  could  not  difcharge  the 
debtoi  a^ainft  the  aflion  of  the  executor ;  and  it  is  inconceivable  that  he  can  be  a 
creditor  who  has  no  power  to  acquit  or  difcharge  the  debtor  :— A  rehduary  legatee 
has  a  right  only  to  what  remains  after  payment.of  debts  and  other  legacies;  and  the 
amount  of  his  right  mull  depend  upon  an  account  to  be  taken  and  a  liquidation  oi 
the  whole  ;  which  necelfarily  pre-iuppcfes  the  right  of  the  executor  to  colleO,  t.o 
alien,  and  to  difpofe   of  the  affets,  in  order  to  make  fatisfaaion  for  thofe  demands 
which  mufl  precede  the  refiduura.     The  title  of  the  executor  is  fpecific  to  eacn  and 
every  part  of  the  perfonal  eflate,  the  intercll  of  the  refiduary  legatee  is  only  in  the 
general  furpluG,  after  the  adminiftration  is  complete.     He  is  certainly  not  entitled 
to  ail  the  c'alts,  bccaufe  other  demands  mult  be  firft  paid  out  of  them;  and  ot  what 
.  particular  debts  will  it  then  be  faid  that  he  is  the  creditor,  by  reafon  ot  his  reliduary 
intereft  ?     Is  it  the  debt  of  A   or  of  B  ?     Is  it  the  debt  which  was  difcharge d  m 
fpecie,  or  Uiat  which  was  paid  in  depreciated  paper  ?     The  truth  t.,  that  he  has  no 
ri^^ht  to  any.  no  power  over  any;-that  between  him  and  the  debtor  there  is  no 
fo^t  of  privity  or  relation ;  while  between  the  executor  and  the  debtor  the  privity 
continues  in  all  the  force  in  which  it  fubfifted  between  the  original  pan.es,  .aat  the 
right  of  the  executor  is  prefent,  pofitive,  andfpccific;  the  demand  of  the  rehduary 
legatee  is  future,  contingent,  and  uncertain, 


(   ^J   ) 

I  bollcve  it  ihcicrore  to  be  very  c'ciir  that  the  crciCuiwr,  anJ  not  tli^  rciidaAiy 
lef;-ucc  was  in  law  ;''.J  in  equity,  the  abloKiic  creditor  of  t!ie  debts  due  to  the 
cfhite  of  Ann  Talk.r,  this  exccuto-,  wlui  became  vcHcd  with  her  fall  power 
over  the  debts,  as  \\<:A  by  Iier  own  fpecial  confidence  and  ajipointnicnt  as  by  th : 
known  and  fettled  ojieration  of  law,  wa".  a  citi/.cn  of  the  State  of  Maryland, 
and  not  a  Britiili  fubjocK  He  was  entitled  to  no  exemption  fro"!  the  [^eacial 
cffeft  of  the  laws  to  which  he  and  the  debtors  were  equally  paitijs,  or  to  anv 
benefit  of  a  ftinulation  made  ijii  favor  of  the  iubjeifla  of  another  n  ition. 

The  refiduary  legatee  was  not  the  creditor  of  any  one  debtor — he  wa;  entlcLi 
merely  to  the  refiduum  after  a  dueadminiibation.  If,  to  his  prejudice,  the  clhitc 
liad  not  been  duly  adminilbered,  the  executor  has  been  furlieiently  refnonfible, 
and  the  remedy  agiunfl  the  executor  unimpaired  by  any  legal  impediment.  .  But 
it  circumflances  occurring  in  the  courfe  of  a  faithlul  adminiltration,  have  lefTened 
i.hc  amount  which  he  cxpeded  the  redtluuni  to  produce,  it  is  a  misfortune  whicli 
h:is  grov/n  out  of  the  war,  b.ii  to  which  the  treaties  have  no  rjr'jrene?. 

Nor  is  this  a  merely /o;v;w/  objciflion  :  It  Is  properly  admitted  by  tiie  c!  '.imant, 
"  that  the  treaty  made  between  his  Britannic  majefty  and  the  United  States  of 
"  America,  bearing  date  the  3d  day  of  September  1783,  could  not  of  itfelf  revive 
*'  liis  remedy  for  the  recovery  of  fuch  debts  ;  the  faid  treaty  reviving  his  remedy 
"  only  in  thofe  cafes  where  the  fuits  could  be  fudahud  in  the  name  of  a  fu'-jeiJl 
"  of  his  f.ild  Britannic  majefiy."  And  it  is  fubftantially  true  that  the  tre.Uy  oF 
I794»  provided  for  compenfation  To  fuch  creditors  only  wh.ofe  remedy  was  refhnx^J 
or  revived  by  the  ftipulation  of  tlie  former  treaty  ;  which  can,  by  no  equitable 
conftrucTtion  be  deemed  to  i-equire  that  the  cdablidied  forms  of  judicial  proceeding 
fliould  be  altered  in  favor  of  BritiHi  creditors,  or  by  particular  or  partial  regula- 
tions be  made  to  bend  or  yield  to  the  fpccial  cafe  of  every  indivi.lual  v;ho  had  eon- 
fequentially  or  incidentally  fuitained  damage  by  the  war.  ^.'iie  extravagance  of 
fuch  a  dodrine  will  be  illullrated  by  fuppofing  that  in  ttiis  cafe,  there  had  bee» 
two  or  more  joint  refiduary  legatees,  of  v/hom  all  except  the  claimant  v/crc  Ame- 
rican citizens.  By  what  I'hangc  or  complicated  pcrverfiOn  of  the  elhibliilied  modes 
ot  fuit  could  the  aJminiftration  of  julHce  in  the  courts  of  the  country  be  lb  modi- 
fied as  to  meet  the  demand  of  a  cafe  thus  circumllanced,  and  agreeably  to  the 
doctrine  contended  for  on  tlie  pait  of  tlie  claimant,  Iccure  his  alledged  right  with- 
out impairing  the  operation  of  the  law  in  regard  to  the  citizens  wb.o  would  confefs- 
edly  be  bound  by  it  in  all  its  confcquences  ?  It  w;i5  in  elFeol  agreed  by  the  treaty 
of  peace,  that  a  free  courfe  (hoidd  be  allotted  to  the  judicial  profecution  of  tiie 
demands  of  creditors  on  cither  fide,  but  not  that  the  courfe  of  judicial  proceeding 
ihould  be  diverted  or  led  afide  from  its  ordinary  channel  in  every  perplexed  or 
fanciful  diredion  which  might  be  thouglit  neceflary  to  facilitate  the  caufe  of  every 
claimant.  It  agreed  in  efFcd  to  reltore  the  creditor  to  the  fame  fituation  in  wliich 
he  would  hav;  been,  if  no  impediments  had  been  interpofed  to  prevent  his  remedy  ; 
but  not  to  devifc  or  invent  new  remedies  inconfillent  or  incompatible  with  the  whole 
fyijem  of  jurirprudence.     It  opc-Ucd  as  a  repeal  of  the  legiflative  ads  which  liad 

M  been 


•;^ 


) 


11, 


M-' 


b-'ennir.dc  imp;.iiir'.;  the  lij.t  oFEtitilli  cicdl'.orr,  to  ivv.iil  tlumfclvcs  of  the  ordi- 
nary  modes  of  rcha';  bit  did  not  require  that:  l.iws  lliould  be  i)a(ll-d  to  aflbrd  them 
mod'.:-,  of  J  cli'jf  unknown  before  tlic  contcll  between  the  two  nations. 

As  the  preceding  reufuiis,  deduced  from  f.^fcs  which  are  ])eculiar  perhaps  to  this 
ca(e,  are  lufHeicnr.^io  detciminc  my  jml'mcnt  and  cundua  herein,  I  forbear  to 
enter  into  the  difcuinon  or  conCidcration  of  other  qucilions  whicii  have  been  raifed 
and  whirh  are  d'ommon  to  a  lar.^c  clafs  of  cafes.  I  only  think  it  proper,  in  order 
to  prevent  miCipprchenfion,  to  deelaie  tliat  it  is  perfedly  clear  to  my  underfhinding 
that  the  exprcQion,  «  lawful  impediment,"  in  the  treaty  ot  peace,  can  mean  only 
imi-dimcnts  created  by  the  law,  and  cannot  by  fair  interpretation  be  extendca  to 
include  impediments  of  laa  or  inipedimeais  diredly  anlmg  from  the  aa  of  the 
creditor  or  hi.  authorized  agent.  ^_  SITGREAVES. 

Extract: J  f rem  :hc  proceedings  of  the  Board. 

G.  EVANS,  Secretary. 


lo  the  CommilJioncrsJur  carrying  Into  EffcB  the  Sixlh  Jrllck  of  the  Treaty  of  yhihy. 
Commerce  and  Nuvigatljn,  concluded  betiveen  his  Brilannic  Majrjiy  and  thj 
United  States  of  Jnuri.a. 

ThememoHal  of  Joiin  Bowman,  William  French,   Andrew  Bucharman,  James 
•  Hopkirk,  Ronald  Crawford  and  John  M'Kce,  who  furvlved  Alexander  Speirs 
deceafed,  merchants  trading  under  the  firm  of  Alexander  Speirs,  John  Bow- 
man and  company,   of  Glafgow. 

Respectfully  Sheweth, 


That  the  memorlalifb  are  and  always  have  been  fubjeas  of  his  Britannic 
majcfly. 

That  the  fald  houfe  of  Alexander  Spiers,  John  Bowman  and  company,  for 
many  years  prior  to  the  American  revolution,  carried  on  extenfive  bufmefs  as 
merchants  \n  the  then  colony  now  State  of  Virginia,  where  they  had  eftabhfhed 
fourteen  different  ftores  under  the  management  and  direaion  ot  their  tabors.  ^ 

-  That 


< 


(     9^     ) 

That  ai  liic  tii'.!.  tiitir  iliclors  were  prncrally  obli.ied  to  leave  Virginia  nraicr 
the  iiifl  and  proclasKilion  fur  cLforcinii;  th  .•  (btutc  ft.ipic,  there  were  nunnioii?  nni 
extenfive  debts  bcfoi.'  th'-n  Iwn/i  fide  contr.i'.lfd,  (Uic  ar,d  fiwin;;  lu  t!i;  m  hv  il'lT'  r- 
ent  citiz-jn5  of  the  Uiiitcd  Stati;  ,  at  each  of  their  fiiJ  (h^rc^,  all  of  which  with  tlu^ 
intcrcd  lhc'r;:on  accniCv^,  IHII  r  nainod  due  owinr;  and  uncollci^cd,  at  the  definitive 
treat}' of  peace  between  Great  i3ritaiii  and  ihc  United  States. 

Your  nicmoiialifls  fiirtlKr  bct^  leave  lo  ftatc  and  ihcw,  that  notwltldhuulin" 
every  exertion  and  indulhy  of  your  meniorialifls  throuj'h  their  agents  and  colLc- 
tors  employed  and  font  out  at  the  peace  and  continued  ever  lince,  a  very  lar^c 
part  of  the  faid  bona  fulc  debts  ftill  remain  due  and  owinjr  by,  and  uneollei^ed 
frcni  divers  citizens  of  die  States  of  Virginia  and  North  Carolina,  uhoil-  eilatcs 
were  reputed  and  believed  folvent  at  and  fincc  the  peace  ;  that  the  recovery  of  the 
laid  debts  has  hitherto  been  prevented  by  the  lawful  impediments  in  the  laid  State?, 
fincc  the  peace,  which  have  heretofore  been  ftated  to  the  Board,  and  that  full  and 
adequate  compenfitic.n  for  th-i  fame  cannot  now  be  adlualiy  obtained,  had  and 
received  in  the  ordinary  courfe  of  jufHce  ;  and  that  the  lofles  and  d a.. "ages  thfy 
have  fufhuned,  have  not  been  occafloned  by  the  manifeil  delay,  negligence  or  wil- 
ful omilllon  of  your  meniorialifts. 

True  and  accurate  ftatements  of  the  principal  fum  of  each  particular  debt  yer 
due,  outftanding  and  uncolletacd,  the  names  and  refidenec  of  the  fevcral  debtors, 
the  nature  of  each  demand,  and  the  dates  of  the  fpecialties  notes  and  ligned  fettle- 
ments  accompany  this  memorial,  and  your  memorialilb  pray  the  fame  raav  be  taken 
confidered  and  received  as  forming  part  thereof.  .  ' 

The  faid  fhitements  or  fcliedules  are  deilgnated  by  the  marks  and  figures  as 
follow : 

N^.    1.  Lift   of  debts  due   to  Alexander   Speirs,   John  Bowman    tnd   company, 
merchants  of  Glafgow,  at  their  Peterfburg  ftorc. — Andrew  Johnfton, 
jun.  laft  faflor. 

o 

2.  SB  Debts  due  at  their  Ofborne  flore.        ^ 


3.  [vr,  Debts  due  at  their  Peterfljurg  {lore  ;  Emanuel  Walker  laft  fa^ltor. 

4.  SB  Debts  due  at  their  Warwick  ftore.        1/ 


:.  SB  Debts  due  at  their  Manchefter  ftore.      <^ 


6.  SB  Debts  due  at  their  Prince  Edward  ftore. 


/* 


Al 


%. 


v^, 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


I 


1.0 


I.I 


'-  IIIIIM 
i"  IIIIIM 


IM 

IM 

1.8 


1.25 

1.4 

1.6 

^ 6"     — 

► 

p 


/} 


<p> 


^;; 


Ss 


Photosraphic 

Sciences 
Corporation 


V .  ^A3^ 


#v 


<^ 


#3 


»    <>^ 


> 


CI  uuesT  »JSft!?J  STSccT 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


.^' 


W4 


^<9 


?< 


mm 


I 


(  92  ) 

f  .  ,  -- 

7.  SB  Debts  due  at  their  Charlotte  county  ftorc-.      w' 

r.  .  ■       , 

8.  SB  Debts  due  at  their  Lunenburg  (lore.       ^       ^ 

"  J 

9.  SB  Debts  due  at  their  Halifiix  ftore.  l^ 

ic.  SB  Debts  due  at  their  Cumberland  (lore.     -^       u'' 

1 1.  SB  Debts  due  at  their  Mecklenburg  county  (lore.   Uu' 

12.  SB  Debts  due  at  their  Bedford  county  (lore.        u     ^ 

n 

13.  SB  De'':ts  due  at  their  Anihurft  flore. 

14.  SB  Debts  due  at  their  Richmond  (lore,     t-  '.  ■ 

While  your  memorialins  pray  that  this  their  claim  may  at  prefent  be  received 
Tor  each  and  every  of  the  principal  fums  dated  in  the  ubove  hfts,  with  legal 
interert  from  the  times  when  by  the  fpecial  contrads  or  the  cuftom  of  the  trade 
mtereft  became  chargeable,  to  prevent  all  mifunder (landing  or  any  imj)utation  on 
tlieni,  of  claiming  any  farthing  not  juftly  due  and  owing,  they  think  it  nccefiary 
here  to  fhite,  that  the  foregoing  lifts  have  been  made  out  for  fome  confiderable  time 
pall: ;  that  in  a  concern  of  this  magnitude,  a  regard  to  their  own  intercit  as  well  as  a 
mod  llnccre  dchre  to  Iclfcn  the  burthen  of  th.e  United  States,  didated  the  propriety 
of  keeping  their  agents  and  coiledlors  employed  in  endeavours  to  colled  as  much  as 
poiTible  from  the  original  debtors  or  tl.eir  reprefcnratives  ;  that  they  are  yet  em- 
ployed in  that  bufmels,  and  your  memotialifts  are  not  without  hopes  tiiat  confiderable 
CI  edits  may  yet  be  given  on  the  above  nfls. 

Your  memorialifts  therefore  pray,  that  they  may  hereafter  be  indulged  in  the 
privilt'dge  of  filling  additional  fchedulcs  in  whicli  the  above  named  debtors  will  be 
clafl'ed  according  to  the  nature  of  the  demand,  the  circumlbnces  of  the  debtor  at 
the  peace,  during  the  exiftence  of  lawful  impediments,  and  at  prefent,  together  with 
the  ncceflfary  calculations  in  which  Ichedules  credit  will  be  duly  and  faithfully  given 
for  all  fuch  fums  of  money  which  may  liave  been,  or  yet  may  be  colleded,  and  from 
which  will  be  omitted  all  fuch  demands,  if  fuch  there  are,  for  which  your  memori- 
aliils  on  the  moft  mature  confidcration,  fliall  not  think  themfelves  juftly  and  con- 
Icientioufly  entitled  to  compenfaiion  witbin  the  true  ii.tent,  fpirit  and  meaning  of  the 
treaty.  « 

WILLIAM  MOORE  SMITH, 
\  tih  OBola-f  1798,  General  agent  for  claimants. 

To  .'he 


^ 


vi 


(     93 


To  the  CoivimJfionc-.-s  for  carrfing  into  Effcci  the  Sixth  Artictt  if  the  Treaty  of 
ui^m'itx.  Commerce  and  Navigaiioft^  concluded  hetiveen  his  Briiafittic  Alt- 
jejly^   and  the  United  States  of  Americu^   en  the  U)th  Novimkr  1794. 


h 


The  anf-A-er  on  the  part  of  the  United  States  to  the  memorial  and  oJ.ii;n  of  Jol.ri . 
Bowman,    WilHam  French,    Andrew   Buchanan,    James    Hopkirk,    Ronald 
Crawford  and  John  M'Kee,  who  furvived  Alexander  Spciis,  deccafctl,  Mer- 
chants trading  under  the  firm  of  Alexander  Speirs,  John  Bowmaii  and  co.  of 
Glafgow. 

IN  OT  admitting  or  confc-ning  that  the  feveral  debts  or  any  of  thcin  fet 
forth  by  the  ckiimants,  were  ju(Uy  due  at  the  date  of  the  execution  of  the  treaty 
of  peace,  to  wit — On  the  third  day  of  September  X7H3,  or  remain  at  ihis  time 
due,  nor  admitting  that  the  feveral  nerfons  ihited  to  be  dt.btors  or  any  of  them 
were  citizens  or  inhabitants  of  any  one  of  the  United  States  when  the  laid  tieaty 
of  peace  or  when  the  treaty  of  amity  was  finally  concluded,  but  faving  and  rcferv- 
injT  all  juft  exceptions  to  the  proofs  of  thcfc  matters  when  any  fuch  fliall  be  offered 
to  the  Board  and  the  benefit  of  repelling  liiem  by  other  teftiinony  if  nccefiary, 
the  agent  for  the  United  States  will  proceed  to  anfv/er  the  matters  in  the  faid 
claim  fet  forth  fr  far  as  he  has  been  informed  of  the  fame. 

On  the  lift  of  the  claimants,  Brunfwi-:kftore,No.6,LewellingWilliamfon  appeals 
to  be  a  debtor  to  the  claimants  to  the  amount  of  ^  .      From  an  executiorr- 

ifTued  in  the  name  of  the  claimants,  a  copy  of  which  accompanies  this  anfwer,  it 
appears  that  the  claimants  obtained  a  judgment  againfl:  I^ewelHng  Williamfcn  atid 
on  that  judgment  ifiued  the  beforernentioned  execution,  tefted  the  26th  of  June 
1797,  whicii  wasendorfed  to  be  difcliargcd  on  the  payment  of  500  dollars,  with 
intcreft  from  the  firft:  of  September-  178^  until  paid,  and  nineteen  dolhus  and 
lixteen  cents  cofts.  To  which  writ  the  marflial  of  Virginia  on  the  13th  of  No- 
vember 1797  returned,  that  he  could  find  no  goods  cr  chattels  of  the  det-ndant's 
whereof  to  make  the  debt  and  coih. 

From'  the  information  communicated  to  the  agent  for  the  United  States,  it  ap- 
pears that  Lev/cUing  Williamfon  ivas  folvent  at  the  j^eice  in  1783,  and  continued 
io  a  fliort  time  thereafter,  when  he  became  infolvent  during  the  exiflence  of  legal 
impediments  in  Virginia,  as  determined  by  the  Board  in  the  claim  of  Cunninghairr 

and 


(     94     ) 

und  co'.'iipany  rind  h  infiilvcni;  fit  this  t!ni-j.  "With  a.  belief  of"  tiic  iiuth  of  th:{e 
I'.ifls  and  on  pvoof  of  fuch  facls  as  it  is  r.eccflary  for  the  claimantG  to  produce  to 
entitle  them  to  claim,  to  v/it — That  t!uy  were  all  Britifli  fuhjC(5t-3  at  the  pCtje  and 
at  th.e  conclufion  of  t'  '  treaty  of  aniitVj  and  that  the  debt  was  contracted  before 
the  peace.  t!ie  agent  fur  the  United  Suites  aduiils  that  the  United  States  are  chaig(> 
able,  \vi;h  the  amount  recovered  rrjair-fl  Lewxlling  Williamfon,  viz.  five  hundred 
dullars  with  intcrcft  from  the  ill:  J:inuary  17S3  till  paid,  after  tlic  rate  of  five/.;- 
li'itlum  pir  annum.)  and  on  the  claimanis  giving  fuch  an  affignment  of  this  debt  to 
the  United  States  as  the  I'onrd  ihall  direc^t,  the  fame  ought  to  be  paid  by  th.c 
United  States  to  them,  at  fuch  time  and  place  as  fiiall  be  awarded  by  the  Board. 


\']th  cfyltrU,  1799- 


JOHN  READ,  JuK. 

jlgent  general  for  lJ:2   Utiilcd  State. 


1  he  fiivihcv  auf-jjcv  on  the  part  of  the  United  Stales  to  the  memorial  and  claim  of  the 
furvivlng  partners  of  Speirs,  Botuman  and  company. 


o 


a  debtor. 


N  the  lift  of  the  claimants  Richmond  (lore    John  Smith  appears  to  be 


From  an  execution  iflued  in  the  name  of  the  claimants,  a  copyof  which  accom- 
panies this  anfwer  whicli  is  fuppofed  to  be  for  the  fame  debt  as  that  ilated  to  be  due 
by  the  laid  John  Smith,  it  appears  that  the  claimants  obtained  a  judgment  againll 
John  Smith  in  the  circuit  court  of  the  United  States  for  the  diltrid  of  Virginia 
and  on  that  judgment  iflued,  the  beforementioned  execution  tefted  30th  January 
1798,  dire*5ted  to  the  maiflial  of  that  dirtri(5):  commanding  him  of  the  goods  and 
chattels  of  John  Smith  to  caufe  to  be  made  nine  hundred  and  fix  dollars  and  fifty- 
two  cents,  and  twenty-four  dollars  and  forty-three  cents  for  damages  and  cofts  for 
the  non-performance  of  a  certain  promife  and  afTumption  whereof  the  faid  John 
Smith  was  convieled  as  appears  by  the  records  of  that  court.  To  v/hich  writ  the 
marfnal  returned  he  could  find  no  goods  or  chattels  whereof  to  make  the  amount, 
or  any  part  of  this  execution. 

From  the  information  communicated  to  the  agent  for  the  United  States  it  appears 
that  John  Smith  was  folvent  at  the  peace  in  1783,  and  continued  fo  a  fhort  time 

thereafter, 


( 


v> 


) 


thereafter,  ^vhcn  he  became  infolvcnt  during  the  cTtifltncc  of  legal  impediments  in 
Virair.iii  as  dcterniincd  by  'he  Bt)ard  in  the  claim  of  Cunningham  and  coni]inny, 
and  is  infolvcnt  at  this  ti.ne.  With  a  belief  of  the  truth  of  thefe  fvfts  and  on 
prcof  of  fuch  facts  as  it  is  ncce/Tary  for  the  claimants  to  j'roducc  to  cniitle  tluni 
to  claim,  to  wit — That  they  were  ail  Britifli  fubjeds  at  tiie  peace  and  at  the  conclu- 
finn  of  thetrcatv  of  amity,  and  that  the  debt  was  contracted  before  the  peace  j 
the  agent  for  the  United  States  adniits,  that  the  United  States  are  chargeable  with 
t've  amount  recovered  again!!:  J(ihn  Smitl:,  to  wit — Nine  hundred  and  l;:c  dt. liars 
and  52  cents  with  intcreit  from  the  judgment  after  the  rate  of  five /cr  rcrlnn  per 
nv.nur.i,  and  on  the  claimants  giving  fuch  an  aflignment  of  this  debt  to  the  United 
States  as  the  Board  ihall  direct,  the  fame  ought  to  be  paid  by  the  United  States  to 
them  at  fuch  time  and  place  as  firul  re  awarded  by  the  Board. 


ijlh  of  May, 


JOHN  READ,  JuN. 

^gerJ  gcucral  for  the  United  Sfahs. 


i^ddll'ional   Meimrial  and  fpedal  averments  fur    evidence   hi   the   claim   of  Sjhlro, 
Bowman  and  company,  for  compcnfation  far  ddts  contra^ed  at    the  fdloivitig 
Jlores,   viz. 


LUNENBURG. 
HALIFAX  and 
MECKLENBURG, 


\ 


Ii:  Virginia. 


1  HE  memorialifts  refpedfully  referring  to  their  memorial  and  claim  already 
before  the  Board,  and  to  the  feveral  matters  and  things  therein  contained,  more 
particularly  to  their  engagement  to  arrange  their  feveral  debts  under  proper  clafTes, 
fo  that  an  inveftigation  of  them  might  be  rendered  more  eafy,  and  to  their  rcquelt 
for  time  to  make  iuch  arrangement,  beg  leave  now  to  ftate  that  in  the  feveral  fchedules 
which  accompany  this  their  additional  memorial,  they  have  omitted  every  debt 
fuppofed  bad  at  the  peace,  or  which  might  probably  have  been  loft  if  no  lawful  im- 
pediment had  exlfted  fmc  the  peace,  they  have  ftated  only  the  ac^^ual  lofs  fultained 
upon  many  debts  partially  paid  fince  the  peace,  and  they  have  clafTed  every  debt  or 
part  of  debt  claimed  ia  the  following  order  : 

A. 


(     9^     ) 

A.  Debts  on  open  accounts,  figned  accounts,  or  notes  without  feiil,  Sc:. 

Thefe  debts  cannot  be  recovered  for  the  followincj  reafons  : 

1.  The  open  accounts  can  only  be  proved  by  the  (tore  books,  which  the  courts  will 
not  now  admit  as  evidence,  and  whicli  would  have  been  admitted,  and  were 
never  difputed  before  the  war. 

2.  The  figned  accounts,  notes,  Sec.  arc  all  barred  by  the  adi:  of  limitation,   and 

were  lo  barred  during  the  exi(i:encc  of  lawful  impediments,  but  were  not  lb 
barred  at  the  peace,  if  the  courts  had  been  open. 

B.  Debts  on  fpecialties,  folvent  at  the  peace  and  become  infolvent  during 
the  exillence  of  lawful  impediment3. 

C.  Debts  on  fpecialties  from  pcfons  yet  reputed  folvent,  from  whom  a  recovery 
may  probably  be  hud,  except  fuch  dcdudions  of  intercfl:  as  juries  may  chufe 

J.0  make  and  courts  to  fandion. 

D.  Debts  on  fpecialties  from  pcrfons  who  are  dead,  and  their  property  divided, 
or  who  have  removed  during  the  exigence  of  the  impediments  or  whole  refi- 
dence  and  prefent  circumftances  are  unknown. 

E.  Lofics  fiiftaincd  by  deduiflions  of  intereft  on  debts  fettled  by  payment,  or 
"ivinsj  new  bonds  without  fuit. 

F.  Lo/Tes  fuftaiued  by  deductions  of  inte     d  made  by  juries,  &c. 

In  a  column  of  remarks,  and  oppofite  to  the  name  of  each  debtor,  are  ftated  fuch 
fafts  as  are  deemed  material,  and  the  names  of  the  witnelTcs  by  whom  the  fame 
may  be  proved. 

The  following  is  the  tcftimony  by  which  the  claimants  expect  lo  fupport  their 
claims  and  is  the  bell  now  ir  their  power. 


4 


LUNENBURG     STORE. 

John  Patterfoii  their fa(f^or  at  the  fad  ftore  is  dead  ;  his  hand  writing  can  be 
proved  by  Chriftopher  M'Cormic,  Efq.  of  Peterlburg  and  Jonathan  Patterfon  who 
has  removed  to  Kentucky  to  a  regular  fet  of  books — James  Burns  was  his  afliftant  ; 
it  is  not  known  what  is  become  of  him  ;  his  hand  writing  can  be  proved  by  the  above 
gentlemen.  There  is  no  perfon  who  can  prove  the  delivery  of  the  goods,  and  the 
books  are  the  only  evidence  of  the  open  accounts.  Henry  Stokes,  Peter  Stokes  and 
others  of  Lunenburg  ;  John  Ballard.  Newman  Dortch  and  others  of  Mecklenburg, 
and  Jonathan  Patterfon  now  of  Kentucky,  can  prove  the  foJvency,  infolvency, 

deailiSi 


(     97     ) 

deaths,  retnovajr,,  Sic.  cs  ftated  In  the  remarks.  Their  aiUdavits  ^rc  already  taken 
ex  parte,  and  the  accounts  have  all  been  corredly  copied  and  ready  to  be  compared 
with  the  books,  in  the  prefence  of  any  perlon  who  may  be  appointed  for  that  pur- 
pofe.  The  fum  total  claimed  at  this  (lore  is  fourteen  thoufand  fix  hundicd  and 
forty-five  pounds,  fifteen  Hiillings  and  five  pence  halfpenny,  with  additional  intcreli 
from  the  firit  d.iy  of  June  1798,  to  which  time  intereft  is  calculated  in  the 
fchedule. 

John  Patterfon  and  James  Burns  aforefald,  are  the  witnefies  to  moft  of  the 
bonds ;  Henry  Stokes  and  others  to  fome  few — Newman  Dortch,  at  jjrefcnt  in 
Philadelphia,  can  prove  the  feveral  dedudions  of  interell:  that  they  wcrefubmitted 
to  from  the  convidion  that  it  was  the  utmoft  fum  that  could  be  obtained  in  any  cafe 
even  upon  bond,  and  that  moft  of  the  debts  fo  fettled  at  this  ilore  were  accounts  on 
which  nothing  could  be  recovered  at  law. 


HALIFAX  STORE. 

The  a»nount  of  lofs  at  this  (lore  for  which  compenfation  is  claimed,  is  twelve 
thoufand  three  huiidred  and  twelve  pounds  fix  (hillings  and  ten  pence  halfpenny, 
with  additional  intereft  from  the  firft  day  of  June  1  798,  as  aforeliud. 

John  Calder  the  company's  hfior  at  this  florc,  is  dead.  Hef.,-  M'Neil  who 
was  the  affiftant,  lives  in  Peterfburg  Virginia,  and  is  the  witnefs  to  the  figncd  fet- 
tlements  generally,  he  can  prove  the  books  and  the  liand  writing  of  faid  Calder, 
who  is  a  witnefs  in  fome  inflances.  Remarks  are  alfo  pretty  generally  made  oppo' 
Jite  to  the  names  of  the  debtors,  the  truth  of  which  can  be  eftabliflied  by  Hamp- 
ton Wade,  James  Boyd  and  others  of  Halifax,  William  Willis  and  Spencer 
Speed  of  Mecklenburg,  and  Peter  Stokes  of  Lunenburg,  and  Newman  Uortch, 
above  named. 


MECKLENBURG   STORE. 

The  amount  of  lofs  at  this  flore  for  which  compenfation  is  claimed  is  nine  thou, 
*and  one  Jiundred  and  ninety-two  pounds  three  (hillings  and  one  farthing  with  addi- 
tional mtereft  from  the  {iid  day  of  June  1798,  as  aforefaid. 

Thomas  Banks  the  company's  fa^or  at  this  (lore  lives  in  Manchefter  Virginia  • 
he  IS  very  infirm  and  in  the  different  fuits  brought  by  the  company  in  Mecklenburc! 
his  depofition  has  been  taken  on  account  of  his  infirmity. 

John  Brown  war,  his  afTiftant;  it  is  not  known  what  is  become  of  him— they  arc 
thei;ubfcribing  witneffes  to  the  fpecialties  &c.  generally  at  this  flore,  and  the  hand 
wntmg  of  Brown  can  be  proved  by  Mr.  Banks. 


N 


Remarks 


(     98     ) 

•Remarks  arc  made  to  ihe  name,  of  the  different  debtors  at  this  ftore,  the  truth 
of  vhchc  n  be  proved  by  Jol^n  Holmes,  John  lialUrd,  L.w.s  Parkam.  Thomaa 
Bun  e  Speneer  Speed,  nnd  others  of  Mecklenburg,  and  the  faid  Newman 
?  o  tc  At  this  ftore  there  is  a  claim  under  clafs  F  tor  dedua.ons  of  .nterel  by 
S  m ems  and  mdi^s  in  Hfteen  faits.  The  records  of  all  thofe  fuits  are  obtamed 
i'  d  Sv  o  be  delivered  herewith.  In  every  other  cafe  at  each  ot  the  fad,  (lores 
V  here  any  matter  of  record  is  dated  in  fupport  of  thecla.m,  cop-.es  ^vdl  be  pro- 
cu  4  as  foon  as  poOlble  they  have  long  (ince  been  applied  for  and  prom.fed  to  be 
made  out  as  foon  as  the  officers  can  obtain  time  for  the  purpole. 

The  faid  Newman  Dortch  who  fuperintended  the  tranfcribing  and  arranging 
theL  1  (  and  thi  copying  and  comparing  the  accounts  with  the  ongmal  books  can 
Sfo  prove  that  no  dim  is  brought  forward  therein  for  any  debt  deemed  bad  or 
fufpicious  at  the  peace. 

Thefe  three  ftores  bdng  near  eaeh  other  and  the  wltneffes  offered  in  fupport  oF 
the  ckim  b   ng  in  the  fame  neighbourhood,  the  claimants  have  jmned  them  m  tin 
fuprrntarv  Memorial  particularly  as  all  the  books  of  the  faid  (lores  are  now  at 
one  pl^ce,  the  houfe  of  Mr.  Thomas  Vaughan  in  the  county  of  Mecklenburg. 

The  memorialifts  in  filing  their  fupplimentary  memorial  and  averments  for  tljc 
cl7ns  aT  he!r  other  (lores, ''will  purfue  the  fame  condudl  as  in  thefe  and  if  any 
cUims  at  ^"^>'.  "  orroncrement  (liall  appear  praflicable,  in  the  courfe  of  examm- 
^r:::::^l^^^^^^  the^Lher Ve-entary  memorials  are  finin.ed 
f  l.tn  ftcilitate  the  enquiries  it  will  be  adopted,  if  it  can  be  fo  done  without  a  lofs 
^^!X^^J^M^c^  the  benefits  to  arife  from  fuch  improvement. 

WILLIAM  MOORE  SMITH, 

General  agsHt  for  claimants. 

^20,(1  J^prlh   1799- 


CT-     1    n        'IT  .....  fnr  rarrvin?  Into  Effect  the  Sixth  Jrticle  of  the  Treaty  of  Jniily, 
^'^,^:::t^N^^SZZeAt^een  his  Britannic  W,  anH  the  Unit.l 
iitates  of  America,  on  the  nineteenth  of  November  1794. 

The  anfwer  on  the  part  of  the  United  States  to  the  additional  memorial  and  fpecial 
ave'^In  s  for  evidence  in  the  claim  of  Spei^rs  Bowman  and  company  for  debts 
cXaed  at  their  Lunenburg.  Halifax  and  Mecklenburg  (tor*s. 

The  inc6mplete  flate  of  the  original  memorial  and  the  fchedules  of  debts 
hied  ^v^th  it  by  theft  claimants,  rendered  it  improper  on  the  part  of  the  United 
tlT^  anfwer  the  claim  in  that  State,  and  more  particularly  as  the  claim^rits 


r  99  ) 

prayed  to  be  indiiigsd  in  the  jiavilcdgc  of  filing  additional  fcIicJules  i.i  which  the 
debts  were  intended  to  be  properly  clafTed  according  to  the*  nature  of  the  ilcniand:., 
and  other  information  given  which  wasnccefTiiry  to  a  proper  uiiJcribnding  of  the 
claim.  This  the  claimants  have  done  with  rcfpc^^  to  three  of  their  (bre?!  to  wit, 
the  Lunenburg,  Halifax  and  Mecklenburg  ftorcs  in  their  additional  memorial  v.'hich 
will  nov/  be  obfcrvcd  on, 

The  debts  claimed  of  the  United  States  a?  due  at  the  three  (lores  before  men- 
tioned, are  divided  into  fix  clafles  amounting  with  intercft  to  the  irt  June  179^1 
'^o£s<hi5'     5  4i- 

The  firfl  clafs  of  debts  on  lift  A  arc  reprefented  to  be  due  on  open  accourfs, 
figned  accounts,  or  notes  without  feal  &c  and  that  they  cannot  be  recovered  becaufe 
the  ftore  books  will  not  now  be  admitted  as  evidence,  v/hich  would  have  been  ad- 
mitted before  the  war.  That  the  figncd  accounts,  notes  kc.  are  all  barred  by  the 
a(Sts  of  limitation,  and  were  fo  barred  during  the  exitlence  of  lawful  impediments, 
but  were  not  fo  barred  at  the  peace.  With  reljiedl  to  thefe  debts,  it  muft  appear 
that  the  operation  of  laws  in  Virginia  contrary  to  the  treaty  of  peace,  have  impeded 
the  recovery  of  them,  and  that  the  fame  are  not  recoverable  in  the  ordinary  courfe 
of  jufticc  that  payment  has  Ijecn  demanded  by  ptrfonal  application  to  the  debtors, 
.  and  if  denied,  that  recourfe  has  been  had  to  fome  tribunals  of  jufticc  having  compe- 
tent jurifdi(5tion,  which  recourfe  has  been  unfucccfsful,  even  though  lawful  impedi- 
ments have  exifted  in  Virginia  for  a  certain  fpace  of  time,  yet  fince  the  adoption  of  the 
new  conftitution  in  1789,  there  have  been  none.  At  all  times  perfonal  application 
might  have  been  made  to  the  debtors,  and  it  is  to  be  prcfumed  they  would  have 
made  no  difficulty  in  the  cafes  of  recounts  or  fettlements,  if  the  balances  were 
really  due.  ■  , 

The  claimant  in  his  original  memorial  ftates  that  "  notwithftanding  every  exertion 
"  and  induftry  of  the  cl  limants  through  their  agents  and  colledors  fent  out  after 
*<  the  peace,  a  large  part  of  thefaid  debts  remains  uncolleded."  The  agent  for 
the  United  States  infifts  that  the  claimants  be  required  to  produce  proof  of  their 
agents,  having  ufed  "  every  exertion  and  induftry"  to  colleft  thefe  debts  for  having 
faid  they  ufed  every  exertion  and  induftry  to  colle*^  tncir  debts  it  is  reafonable  to 
require  proof  of  it.  Nothing  would  be  more  unreafonable  than  to  make  the  United 
States  pay  claims  againft  individual  citizens,  to  whom  the  creditors  have  neither 
a<Sually  or  legally  applied  for  payment,  and  to  whom  they  have  never  given  notice 
that  fuph- claims  againft  them,  arc  in  exiftence. 

As  to  the  aflertion  in  the  claim  that  the  ftore  book  which  was  never  difputed 
before  the  war  will  not  now  be  adroitted  to  prove  their  open  account^;.  It  is 
obferved  that  the  a<5ls  of  1748  and  17,5,  which  permitted  this  defcriptjon  of 
eviderce,  which  is  unknown  to  the  common  law  never  have  been  repealed  and 
^il^  at  this  moipcint  in  fuU  force  relative  to  thefe  debts ;  and  if  the  claimants  have 

not 


(    loa   ) 

roMlu-  nc-^n^  v.nckn  thofc  lavv=;  cC  in-oving  their  debts  more  tS.in  tU.y  »;;t'-l  l^^^^^^'^ 
th  w  r  ' bboc.urctheroq.irucsof  thvfc  laws  have  not  b.cn  con.phcd  w.  h. 
^1^  t  n3Ulc  to  their  iKhc..  As  this  i\a,]ca  is  very  f\aiy  obfcrvcd  o.  .n  b. 
.mduatt.iw  of  CirniP-iiam  and  coniniuiy,  tVom  p-.ige  thirty-iwo  to  i.^i^^c 

;:i^;:n^lii(^c^du:^,Hfor.h=  u/m^d  st.,c.  v..m  rdi  f.tbr.d  ...,i, 

iclcning  the  Board  to  tbat  argument. 

The  oncrulpn  of  the  a^s  of  limitauon  on  thi.  dcfcrlpiion  of  debts  has  bccii 
rcnmLXn    ntho  anfwer  to  the  clai-p  of  Dinwiddi.,  Cruvvtord   and  company 
:;""  the  head   of  d.cir  upper  Mecklenburg  (lore  and  in  otb.cr  cafes  to  whu:n  the 
uocnt  for  the  United  States  prays  leave  alfo  to  ref.-r  the  Loard. 

.d    As  to  the  fccond  clafs  of  debts  due  on  fpecialties  xvhere  the  debtors  were 

debtor  is  jutUy  due  ;  in  each  and  every  ^teh  "^^^V%(V  duHn;  the  ^ar  In  t  h'l 
are  refponf.ble  to  the  claimants  except  for  the  interell  ^^""7; , '  f  ;\^  ^-Z^ 
I'miffion  is  not  meant  to  ware  what  has  been  before  contended  tha^  luits  I'^Mj. 

nuking  perfonal  application  for  the  debts. 


3f  mter-    * 


f  eputi  ^ 
:ions  of  inter- 
■en  iiniformfy. 
tcr-' 
r 
•emains 
thtit 
ciency. 


cd    As  to  the  third  clafs  of  debts  on  fpeckilties  from  perfon 

vent  from  whom  a  recovery  may  probably  be  had  except  Ivtch  4c 

eft  as  iuries  may  choofe  to  make  and  courts  to  fanaion.     it  l»i 

contended  on  the  part  of  the  United  States  that  claimants  are 

pmltion  of  the  treaties,  and  by  the  pr maples  of  common  jufti 

Lbt.rs  to  recover  from  them  all  that  is  in  their  power,    hat  i 

dae  after  this  for  which  a  claim  can  be  fupportcd  under  the  tr 

Then  and  only  then  can  a  claim  be  made  before  the  Board  ^g    ^,||^,^^^ 

Th^  ftinulations  of  that  treaty  never  impoled  on  the  United  ^*^^^T^  liSf^^ 

J"  lutding  Britim  dcb.i  w«ch;haib=e„  contraaedbefore  4*^f^-^ 

were  rcmainino  due  from  American  cuizensto  Bnt.(h  ftbjcas|»  Ij**^*  "f'""'; 

r,  the  creditors  lofs  dcfcribcd  in  th=  treaty  mull  be  fully  compenfated  :  But  that 

*ft  of  a  det  canno:  be  confidered  as  U  which  the  debtor  .s  able  and  mayi>e 

comvelled  to  pay  in  the  ordinary  courfe  of  julhce.  ..,.,■'*'' '    t"  ' 

Mb  As  to  the  fourth  clafs  of  debts,  reprefented  to  be  due  (fr  ASPJIW"" 
pcfn's  who  artdead  and  their  property  dked,  or  who  ^-"'»°f ^^f^^ 
Liftence  of  the  impediments,  or  whol'e  refidence  and  prrfent  "^^^f^^;^ 


'— 4 

t  A 


4- 


(    'o'    ) 

iin'Miown,  It  is  innflcd  on  \\\z  part  of  the  UnitoJ  Stat'.'s,  tiiat  aUliO'.ii;lii!iJ  UlUdi 
js  dcccaCcd,  ;iacl  \\\\  pioperty  luis  been  ilivklcl,  it  doci  not  follow  that  tiic  Uailcil 
Sta'.'s  iire  to  be  laumicd  to  jniy  the  debt.  By  t)v:  law?  of  Vin;iiii.i  the  pcrlbn.-.i 
property  of  thcd*.cciifcJ  is  liable  in  the  hands  of  liis  •  prcfcntativcs  to  piy  all  \\\\ 
debts,  .ind  the  land:,  aiul  veal  property  of  tlie  deccafed  are  liablvj  in  th;-  hands  of  hi; 
heirs  or  dcvifecs  to  j.iv  his  ipecially  or  judj^ment  debts,  ami  ti.crcfoic  wlv.re  ih..- 
crtate  is  fo  liable  it  oii^ht  to  be  purfucd  by  the  crcdi'.or.  Viioinia  Lawi,  Ucvilal 
of  I7y4»  page  54.  Nor  althougii  it  has  been  fquandercd  cither  by  the  deccafcd 
In  hi:  life  time  or  by  his  rcprefent  itives,  docs  it  follow  that  the  United  States  are  to 
be  awarded  to  pay  the  d^ln.  If  liie  creditor  has  neglected  for  a  long  time  to  pro. 
fecute  the  debtor,  or  his  reprefentatives  when  he  might  have  prolecuted  them,  and 
in  thia  interval  the  eltate  has  been  wafted  the  lofs  ought  to  remain  with  the  creditor 
for  his  wilful  laches.  Tiie  removal  of  a  debtor  from  one  county  to  another,  01 
from  one  State  to  another,  or  the  creditor's  \yant  of  knowledge  at  this  day  of  the 
rcjidence  and  circumftances  of  his  debtors,  cannot  form  a  fubject  of  complaint,  ot 
civc  creditors  a  right  to  claim  compcnfation  from  the  United  States. 

5th.  As  to  the  fifth  clafs  of  debts  reprefented  to  be  for  lofies  fuftained  by  iL- 
dudion  of  intereft  on  debts  fettled  by  payment  or  giving  new  bonds  without  fuit. 
Thefe  deduaio4)S  it  is  ftated  were  fubmi'ned  -o  form  a  conviaion  that  it  was  the  • 

and  that  moft  of  the  debts  fo  fettled 

'ft  in  thefe  cafes  where  the  crcdi- 

:»';  debts  were  contraaed  in  retail 

aaice  for  juries  in  Virginia  for 

jfal  of  which  induced  tne  racr- 

orbitancy  of  price  compenfatcd 


utrrtoft  that  could  be  obtained  even 
at  the  Mecklenburg  ftore  weve  accc    ... 
tors  and  debtors  redded  in  Virginia 
dealing  is  not  juftly  recoverable.     1. 
goods  i'old  before  the  war,  to  allow  ir. 
chants  to  fell  their  goods  at  higher  prices. 


it 


for  the  denial  of  intcreft  which  was  generally  reiuled  by  thejuiics. 

This  fubjea  is  obferved  upon  in  the  anfwer  to  Cunningham's  cr.e,  pages  6z 

#and  63,  and  what  is  there  ftated  is  proved  to  be  true  by  the  letters  from  the 

r  judges,  and  other  learned  gentlemen  in  the  jurifprudence  of  Virginia,  laid  before 

the  Board  by  the  agent  for  the  United  States  at  ditTerent  times  in  that  cafe,  to  which 

•*•    the  Board  are  refpeafully  referred. 

6th.  As  to  the  claims  for  lolTes  fuftained  by  deduflions  of  intereft  made  by 
juries,  &c.  This  defcription  of  claims  is  fubmitted  to  the  Board  with  the  obfer- 
Vations  frequently  before  raaae  on  them  on  the  part  of  the  United  States. 

Some  remarks  will  now  be  made  on  the  teftimony  by  which  the  claimants  exped 
to  fupport  their  claim  and  which  they  fay  il  the  belt  ia  their  pov/er. 

The  Board  in  their  refolution  of  the  18th  December  1798,  "  refolved  that 
**  they  will  receive  fuch  evidence  only  to  prore  the  debts  which  are  the  fubjeds  of 
"  claim  before  them  as  would  have  been  cocipetent  and  admiflible  to  prove  the  fame 

"  immediately 


Wf 


I 


•<  immediately  ti'(^vioi:3   to  the    operation  of    lav-hil  impediments  in  the  covirts  qf 
"  the  StiUCT  v.i'crcthc  debtors  at  thiit  time  rcfuct'tivcly  rcfided  ;  unlcfs  upon  fpc 
«<  ciaicMufc  Inltnicv/n,  and  an  oidcr  of  tJic  Board   for  the  admiiVion  of  evidence 
««  of  any   oth.cr  dcrciiption."     To  have   entitled   the   claimants  to  the  proot  ot 
their  book  debts  in  the  court;  of  Virphiiii  the  following  circumftances  would  have 
been  ntcc.Tary  .  The  pKiintiff  at  the  tri^l  would  have  boen  called  on   to  fwcar  o: 
fok-mnly  affirm  that  the  matter  in  difuute  w,is  a  Itorc  accoimt,  and   that  they  h;ul 
no  otiier  means  to  prove  the  delivery  ^herein  contained.     The  oath   or  afurmatioii 
is  to  fet  forth,  that  the  book  contains  a  tiuc  account  of  all  the  dealings  or  lali 
fettlcr.icnt  of  accounts  betv-ttn  the   parties,  and  that  ail  t":      articles  tliercin  con- 
tained were  bona  fide  delivered,  and   that  all  ju"    credits  have  been  jnvcn  to  the 
defendant.     Such  book  accompanied  with  the  o;.th  or  aiTirmntion  would  have  been 
received  a:  good  evidence  to  prove  the  delivery  of  the  articles   within  tw^    years 
before  the  luit  was  brou^'^ht,  but  not  for  an  article  of  a  longer  Handing,  unlclsthc 
defendant  iiad  removed  from  the  county  wliere  the  debt  was  contradlcd,  then  th(' 
time  was  to  be  extended  to  three  years.     A  copy  of  the  book  with  the.  like  oadj 
or  afTirmation,  would  have  been  received  in  the  place  of  the  book,  unlefs  the  book 
was  required  to  be  produced  at  the  joining  of  the  iHue.     If  the  creditor  who  deli- 
vered the  iLcrchandizc  was  dead,  his  executor  or  adminiflrator  on  making  oath  that 
there  were  no  witncfies  to  his  knowledge  to  prove  the  delivery  of  the  goods,  and 
that  the  book  was  found  fo  ftated,  and  that  he  does  not  know  of  any  juft  credit 
to  be  given  ;  might  give  fuch  book  and  oath  in  evidence  for  any  articles  delivered 
within  the  time'  r.forcfaid.     The  factor  of  a  merchant  rcfidcnt  in  Great  Britain 
or  Ireland  v/as  allowed  to  take  the  fame  oath  to  his  book  of  accounts  or  to  a  copy 
thereof  which  was  admiiTible  evidence  in  like  manner  and  under  like  limitations,  ar 
was  imnofed  on  tb^  creditor, 

Each  ac^ovnt  flioukl  exaftly  appear  before  the  Board,  that  the  date  and  amount 
of  each  item  may  be  fcfn  for  the  purpofe  of  afccrtaining  what  part  is  within  the  ope- 
ration  of  the  aits  of  1748  and  1755,  to  vhich  reference  has  been  made, 

Proof  of  the  hand  writing  of  John  Patton  formerly  fador  at  the  Lunenlurg 
{lore,  who  is  now  rcprefented  to  be  dead,  is  offered  to  prove  the  book  debts  due  at 
that  ftore.  The  death  of  a  fador  at  a  ftore  rendering  it  impoflible  to  comply  with 
the  requifites  prefcribed  in  the  two  afts,  as  befo-^  particuli:_.y  ftated,  in  the  like 
manner  as  if  he  had  been  living,  which  the  provifions  of  thofe  laws  had  in  view  ; 
the  courts  in  Virginia  admit  proof  of  the  hand  writing  of  the  fadtor  and  clerk  or 
nfliftant  in  a  ftore  who  made  the  entries  in  the  ftore  bookc  of  original  entries.  In 
the  additional  memorial  il  is  not  Jlated  that  John  Patten  made  the  entries  in  thejlorc 
look  of  original  entries.  As  the  proof  pf  this  faft  would  be  required  in  the  courts 
of  Virginia  to  entitle  fuch  evidence  to  be  admitted  there,  fome  fufficient  caufe 
fiiould  be  (hewn  to  the  Board  acc*\-ding  to  the  terms  of  their  rcfolution  to  fatisfy 
them  to  difpcnfc  with  it,  or  tlie  Bo^rd  Cannot  confiften-,ly  admit  it, 

Thefe 


4L,K:>^b  \^ 


(    '03    ) 

•rrnfe  obfervations  apply  olfo  to  the  cvidw-nce  to  prove  the  book  dohts  at  th'.« 
fialifax  (lore, 

Thomas  Banks  the  company's  f:iJ\or  at  the  Mecklenburg  ftoie  is  reprcfcntcd 
to  be  IHU  livir.g  ;  if  his  evidence  is  to  be  tal'on  to  prove  the  book  debts  at  this  Ibro, 
it  is  infift  "  that  it  Ihoiild  be  admitted  only  in  the  manner  in  which  fuch  proof 
would  be  received  in  the  Courts  of  Virginia,  unlefs  fufficient  caufe  is  (hewn  to  the 
Board  to  depart  from  their  refolution  on  this  fubjciS. 

JOHN  READ,  Juw. 
jlgtnt  general  for  the  United  Stales, 
^hjune,   1799. 


To  the  Commi/ftoners  for  carrying  Into  EJfe£l  the  Sixth  Arlkh  of  the  Treaty  of  Amit\\ 
Commerce  and  Navigation,  betiveen  his  Britannic  Majefy  and  the  United  States 
of  America, 

The  Memorial  of  Charles  Ofborne,   of  Yorkfhire,  in   the  kingdom  of  Great 

Britain,  lifcjuire. 

Rrspectfully  Sheweth, 


1  HAT  your  memori?li(l  is  a  natural  bornfubjea  of  his  Britannic  majefty. 

That  on  the  fourteenth  day  of  March  1771,  William  Nicholls,  Phineas  Bond 
and  Samuel  Mifflin,  of  the  city  of  Philadelphia,  were  juftly  indebtet  to  yoi-  me- 
morialift  in  the  fum  of  fix  hundred  pounds  Pennfylvania  <:urrency,  for  the  payment 
\fhereof  in  one  year  from  the  date  with  lawful  intereft  ^X  fix  per  cent,  they  exe- 
cuted  their  joint  and  feveral  obligation  in  the  penalty  of  twelve  hundred  pounds 
like  money. 

Your'memonalift  further  (hews,  that  WiHiam  Nicholls  died  infolvent ;  that  after- 
wards in  the  year  1773,  Phineas  Bond  died  leaving  aflets,  and  Samuel  Mifilin  died 
leaving  affets,  and  thr.t  the  repiefentativej  of  the  folvent  obligors  at  the  treaty  of 
"  peace 


(    104    ) 

..ace  between  Great  Britain  and  the  United  States  were  ckizens  of  Pcnnfylvanla, 
pk'efTed  of  alfets  fufficient  to  difch.rge  all  the  debts  of  the  faid  deceafed  lolvent 
obligors. 

Your  mcmorlaUd  further  fliews,  that  the  principal  and  intercft  of  the  faid  bond 
ren^Hincd  due  and  owing  at  the  conclufion  of  the  faid  peace  to  your  memonahf., 
that  the  executors  of  the  faid  Samuel  Milllln  not  denying  their  obligation  to  pay  the^ 
(liid  principal  and  the  interea  on  the  fanae,  except  intereildxir.ng  the  war,  ablo, 
lately  refuied  to  pay  their  equal  proportion  or  half  part  of  the  laid  debt  unlefs  a 
deduaion  of  thelkid  wariatereRwas  made,  which  your  memonahlt  dul  not  think 
himfelf  under  any  obligation  of  equity  or  jufticc  to  allow. 

Your  memorialift  further  begs  leave  to  ftate  and  fnew,  that  a  fuit  was  thereupon 
commenced  upon  the  faid  obligation  which  came  on  to  trial  m  the  %reme  court  of 
Pennfylvania  in  July  1787,  a  tranfcript  of  the  record  of  winch  will  be  produced, 
.nd  at  tlie  Hiid  trial  the  jury  impanneled  to  ^,ry  the  ifTue  under  and  m  conformity 
.0  the  exprefs  charge  of  the  court,  deduced  fix  years  and  an  hal  year  intereft  from 
a  debt  bona  fide  contradted  before  the  peace,  and  then  due  and  owing  to  the  me- 
r.iorialill,  a  fubjeil  of  his  Britannic  majefty. 

Your  niemorialia  further  ftates  and  admits,  that  the  reprefentatives  of  the  faid 

Phincas  Bond  did  not  avail  themfelves  or  attempt  to  avail  themklves  ot  the  acl^ 

vantaae  of  the  faid  verdia   but  fo  far  as  the  ertaie  of  the  faid  Phi neas  Bond  was  in 

equity  and  judice  anfwerable  for  one  half  of  the  debt  aforefa.d,  after  the  •nfolvency 

^^  of  the  faid  William  Nicholls,  i\  ;  fame  with  full  intereft  has  been  fettled  and  fatisfiea. 

Your  memorialift  ftates  and  avers  the  opinion  and  verdift  aforefaid  to  have  been 
'I  lawful  impediment  fince  the  peace,  by  which  he  has  adually  fuftamed  a  lols  oi 
one  hundred  and  feventeen  pounds  money  of  Pennfylvania,  the  amount  of  nx  and 
an  half  year's  intereft  on  the  one  half  the  faid  bona  fide  debt,  and  the  further  lofa 
of  intereft  upon  the  faid  ^'117,  at  the  rate  of  fix  per  cent,  per  annum,  from  July 
J  787,  when  the  fame  according  to  treaty  ought  to  have  been  recovered,  and  wou.d 
have  been  recovered  but  for  the  lawful  impediment  aforefaid. 

Your  memorallft  therefore  prays,  that  his  claim  may  be  received  for  ^i  1 7,  Penn- 
fylvania  currency,  with  the  intereft  as  aforefaid,  and  fuch  award  made  thereon  as 
equity  and  juftice  fliall  require, 

WILLIAM  MOORE  SMITH, 

General  a^ent  for  claimants. 


^Oth  Novemleri  1 798. 


In 


(    '^5   } 


Jn  t/js  Claim  of  CiiAiiLES  O'i^BOKKi:. 

IjEFORE  making  defence  againft  this  claim  the  agent  fo:  the  United  State, 
feels  it  his  duty  to  reprefent  that  Charles  Olborne  refides  in  Great  Britain,  and  it 
does  not  appear  from  any  document  before  the  Board  that  the  claim  has  been  maJ.: 
vith  his  privity  or  confent  or  for  his  benefit,  but  on  the  contrary  it  may  have  been 
inade  at  the  mere  inftance  of  a  ftranger  who  without  authority  has  thought  proper 
t3  bring  forward  this  claim,  to  try  a  quefUon  of  the  molt  momentous  confecjuencci. 

The  agent  for  the  United  States  fubmits  to  the  Board,  whether  It  Is  not  juft  and 
reafonabk  that  there  be  produced,  previous  to  the  filing  the  unfwer  of  tlie  United 
States  in  this  cafe,  fome  fatisfa^ory  evidence  that  the  claim  has  been  made  with 
the  knowledge  and  by  the  diredion  of  Charles  Olborne  or  his  attorney  duly  au- 
thorized. 

It  is  evident  that  the  United  States  will  neceiTarlly  incur  great  expences  in  their 
defence  againfl:  the  many  various  claims  that  have  been  produced  ;  and  the  agent 
for  the  United  States  believes  there  can  be  little  doubt,  that  the  Board  has  not 
authority  in  any  cafe  where  the  claimant  Avail  fail  to  make  good  his  complaint,  to 
award  that  he  fliall  reimburfc  to  the  United  States  the  necefliiry  expences  incurred 
in  their  defence.  This  confideration  it  is  hoped  will  alone  point  out  the  juftic 
and  reafonablenefs  of  requiring  fatisfadtory  evidence  by  fufiicient  powers  of  attorney 
or  other  documents,  that  the  claim  made  in  the  name  of  an  abfentee  has  been  duly 
authorized  by  a  lubjed  of  his  Britannic  majefty,  for  his  own  ufe  and  benefit  and  of 
pofl-poning  until  fuch  evidence  fliall  be  produced  the  anfwer  and  defence  of  tlu: 
United  States. 

By  the  orders  of  the  Board  of  the  5th  December  1798,  and  8th  January  1799, 
claimants  are  lequired  to  lay  before  the  Board  the  powers  of  attorney  or  other 
authorities  by  virtue  of  which  claims  have  been  prefented.  In  but  few  cafes  have 
thefe  orders  been  complied  with.  In  the  prefent  cafe  it  could  be  immediately 
known  whether  Charles  Ofborne  had  authorized  any  perfon  to  file  this  memorial, 
in  his  behalf,  and  whether  a  power  of  attorney  is  now  exifting  whicii  gives  this 
authority.  In  fuch  a  cafe  where  the  order  of  the  Board  can  be  immediately  obey- 
ed, it  is  deemed  reafonable  it  (hould  be,  if  it  cannot,  according  to  the  fpirit  of  the 
refolution  of  the  1  5th  July  laft,  notice  of  the  fame  ought  to  be  given  to  the  Board, 
that  the  United  States  may  not  be  put  to  the  trouble  and  expence  of  enquiries 
which  may  be  ufekfs  from  the  want  of  the  neceflary  pov/ers  to  make  the  claim. 


O 


la 


(    io<5   ) 

In  this  cafe  the  memorial  makes  mention  of  a  record  that  is  not  laid  before  thi 
Board,  and  the  agent  for  the  United  States  will  take  occafion  now  to  obferve  that 
in  many^riftances  the  memorials  refer  to  papers  as  part  thereof,  which  are  not  with 
*hera  laid  before  the  Board,  and  frequently  thofe  papers  are  fo  material  that  anfwerg 
cannot  be  made  before  they  are  infpeaed.  It  would  tend  very  much  to  expedite 
bufinels,  if  the  papers  referred  to  in  the  memorial  as  parts  thereof  were  at  the  fame 
time  exhibited.  In  fuch  cafes  where  the  complaints  are  fo  incompletely  prefented 
if  the  anfwers  on  the  part  of  the  United  States  are  not  made,  the  Board  will  picalq 
to  afcribe  the  delay,  not  to  them  but  to  the  claimants. 

JOHN  READ,  JuK. 

/f^ent  stneral  for  the  United  States, 
^ih  Mayt   1799- 


t  . 


In  the  Clahn  ^Charles  Osborne. 


In  this  cafe  the  general  agent  for  claimants  now  nles  a  power  of  attorney 
from  the  claimants  to  Mr.  W.  Bond,  and  in  no  inftance  has  he  yet  filed  a  claim 
wnlefs  at  the  inftance  of  attornies,  in  faft  regularly  conftituteJ,  or  of  the  parties 
perfonally  prefentor  forae  one  partner  of  a  firm. 

True  it  is  that  in  moft  inftances  the  powers  of  attorney  are  in  the  moft  general 
and  ample  form  to  tranfaa  all  the  bufinefs  of  the  grantors  in  as  full  and  ample  a 
manner  to  all  intents  and  purpofes,  asif  they  were  perfonally  prefent,  and  m  gene- 
ral  thefe  powers  were  executed  fhortly  after  the  peace;  it  .is  m  the  correlpondencc 
between  the  claimants  and  their  attornies,  that  inftruaions  are  given  to  profecute 
the  claims  before  the  Board. 

Moft  of  thefe  powers  will  be  wanted  by  the  attornies  for  other  purpofes  after  the 
Board  may  break  up.  and  have  hitherto  been  detained  for  the  purpofe  of  colleaing 
as  much  as  poffible  from  the  debtors,  and  to  produce  if  called  for  at  any  trial  of 
caufes  yet  undetermined. 

The  general  agent  has  long  fince  given  particular  inftrudionsto  the  claimants  to 

fend  out  new  and  Yneclal  powers  «•  to  make  and  execute  all  fuch  rcleales  and  aUign- 

'         '  "  ments 


(    J07    ) 

«*  ments  as  (hall  be  dire(5te'd  by  the  Board,  &c."  fome  of  thefe  have  arrived  and 
are  filed,  and  duplicates  fince  have  come  to  hand. — He  is  in  daily  expe*n:ation  oi' 
^he  reft,  and  among  them,  the  fpecial  power  from  the  prefent  claimant. 

WILLIAM  MOORE  SMITH, 

General  a^cnt  for  clahnanls. 
j!i2(i  M.iy,  1799. 


To  the  Comm'iffloncrsfor  carrying  i/ilo  EffeB  the  Sixth  Article  of  the  Treaty  of  Amity 
Comriierce  and  Navigation,  concluded  between  his  Britannic  Mnjefly  and  the  United 
States  of  America,  on  the  1  <^th  November  1 794. 

The  anfwer  on  the  part  of  the  United  States  to  the  memorial  and  clauii  of 

Charles  Ofborne. 


'\ 


J.  HE  memorial  reprefents  that  William  Nicholls,  Phineas  Bond,  and 
Samuel  Mifflin  were  indebted  to  the  claimant  by  their  joint  and  feveral  bond  dated 
the  14th  March  1771,  in  ^^1200  Pennfylvania  currency  conditioned  for  the  pay- 
ment of  ^*6oo  one  year  from  the  date  of  the  bond,  with  lawful  intcreft  at  fix  per 
cent,  per  annum.  That  William  Nicholls  died  infolvent  in  1773.  That  Phinca;i 
Bond  and  Samuel  Mifflin  died  leaving  aflets.  That  their  reprefentatives  were  citi- 
2ens  of  Pennfylvania,  and  poflefled  alfets  fufficient  to  fatisfy  all  their  debts.  That 
a  fuit  was  commenced  on  the  faid  bond  in  the  fupreme  court  of  Pennfylvania,  and 
on  a  trial  of  the  caufe  at  the  June  term  1787,  the  jury  in  conformity  to  the  charge 
of  the  court  difallowed  intereft  during  the  war.  The  claimant  dates  the  opinion  of 
the  court  and  verdi<^  of  the  jury  to  have  been  a  lawful  impediment  fince  the  peace, 
by  which  he  has  fuftained  a  lofs  of  ^i  17  money  of  Pennfylvania,  being  for  fix  and 
one  'ialf  years  intereft,  which  with  intereft  on  that  fum  from  July  1787,  forms  the 
amount  of  the  prefent  claim. 

The  defence  againft  this  claim  refts  on  the  ground,  that  in  the  State  of  Pennfyl- 
vania no  laws  operated  againft  the  treaty  of  peace,  and  the  juflgment  of  the  court, 
independent  of,  and  unconnected  with  ,any  fuch  law,  ir,  not  of  itfclf  a  lawful  impe- 
diment within  the  meaning  of  the  treaties, 

It 


m 


(    io5    ) 

It  Is  not  a-Icdged  by  the  claimant  that  the  vcrdia  and  judgment  of  which  he  com. 
»>iiiins,  v/as  conncfied  Nvitli,  or  dependant  upon,  any  lef;i(!;itive  aft  of  any  of  th« 
States  contravening  the  treaty  oF  peace   in   the  State  of  Pconiylvania,  where  tli« 
debt  which  is  the  loundation  of  tliis  cliiim  \v;ls  contraded,  and  where  the  debtors 
refided,  no  fuch  ait  of  the  legidature  was  pafled  or  permitted  to  operaLs   after  tho 
condidion  of  peace.     In  the  Stace  of  Pennfylvania  the  courfe  of  jidlice  ever  fincc 
the  peace,  has  been  as  free  and  unimpeded  in  refpedt  to  Britilli  creditors  as  it  was 
before  the  war.     The  demands  of  Britilh  creditors  againft  American  citizens  which 
have  been  profecuted  in  the  courts  of  that  State,  have  been  judicially  decided  and 
afecrtaincd  according  to   the  fame  principles  and  rules  of  law  and  equity  that  pre. 
vailed  there  before  tb!e  war;  and  julHce  lias  been  impartially  adrainillered  in  thofe 
courts  without  diftiniftion  of  perfons,  whether  Britilh  faujects,  or  American  citizens, 
The  verdiift  and  judgment  of  which  the  claimant  complains  was  rendered  in  tlie 
fiprcme  court  of  Perinfyb-uiia,  in  the  fame  form   and  under  the  fame  laws  which 
were  in  force  before  the  war.     The  contract  was  originally  made  fubjedl  to  the  laws 
of  Pennfylvania,  which  fubmit  to  the  dilbretion  of  juries  and  courts  the  allowance, 
or  difallowance  of  interell  according  lo  equity.     The  contraa  has  been  carried  into 
eff:a  and  fatisfied  according  to  the  laws  in  fjrce  where  it  was  made,  and  no  new 
b\v  whatfoever  has  been  introduced  on  the  fubjed  determined  by  tlie  jury  and  court. 
Tiiis  is  all  that  juftice  required,  and   more  than  juflice  the  fourth  article  of  the 
ueaty  of  peace  did  not  require.     This  treaty  is  not  to  be  undcrflood  as  requirng 
the  iniUtution  of  new  laws  or  new  tribunals  for  the  recovery  of  debts  contracted 
before  the  war,     Tlie  lawful  impediments  meant  to   be   removed  by  the  treaty  of 
peace,  were  impediments  proceeding  from  or  connedted  with  leglfladve  aUs  fubfe- 
ouent  to  the  commencement  of  hoifilities.     In   this  cafe  the  verdia  and  judgment 
being  entirely  independent  of  any  legillative  adt  contravening  the  treaty  of  peace,  is 
not  a  lawful  impediment  in  the  contemplation  of  that  treaty,  but  the  difallowance 
,:f  intereft  being  made  by  a  competent  tribunal  in  purfuance  of  ancient  forms,   upon 
vrincinles  of  equity  recognized  before  the  war,   is  not  to  be  imputed  to  the  operation 
of  a  lawful  impediment,  contrary  to  the  treaty  of  peace      If  the  matter  complained 
of  may  be  called  a  lofs,  it  is  not  a  lofs  proceeding  from  the  violation  of  that  treaty. 
It  was  intended  by  the  fourth  article  of  the  treaty  of  peace    that  the  courts  of  julHcc 
fhould  be  completely  open  to  the  recovery  of  britilh  debts  in  fterling  value,  and  the 
courts  being  open  and  no  law  exifting  contrary  to  that  treaty,  all  was  done  that  the 
treaty  required. 

It  may  be  ftated  as  an  uncontroverted  propofitlon,  that  no  lofs  or  damage  is  to  be 
retributed  by  the  United  States  under  the  treaty  of  amity,  unlefs  it  has  been  occa- 
fioned  by  a  violation  of  the  treaty  of  peace.  In  thofe  States  where  no  lawful 
impediments,  or  in  other  words  no  legiflative  afls  orftatutes  containing  impediments 
to  the  recovery  of  Britilh  debts  had  been  permitted  to  operate  after  the  peace,  no 
cafe  of  lofs  or  damage  arifing  from  the  verdici  of  a  jury  and  judgment  of  a  court 
can  have  occurred  that  is  embraced  by  the  fixth  article  of  the  treaty  of  anritv.  It 
was  not  to  enquire  into  and  adjuft  the  complaints  of  Britilh  fubjedls  for  loffes  and 

damages 


' 


(    •'^9    ) 


:;c  ro  !i;iifiativ<; 


' 


d;'.mages  occafioned  by  judgments  of  courts  rendered  in  Suucr.  whci 
ads  contrary  to  the  treaty  ever  operated,  and  whicii  there !bve  could  not  ha\e  been 
inlluenced  by  any  fuch  lej^illativc  acts,  but  luch  loiFes  and  v.  .images  only  as  hau 
been  occailoned  by  the  opeiation  of  Livs  impeding  the  recovery  of  Britilli  debts. 
When  the  demand  of  a  Briu.lh  creditor  {luill  iiave  been  fairly  and  regularly  afccr- 
tained  by  the  judgment  of  a  competent  court  free  from  the  operation  of  any  legifls- 
tive  act  contravening  the  treaty  of  peace,  fuch  judgment  is  definitive  a-;  to  the 
amount  of  the  fum,  principal  as  well  as  incerelt ;  and  whjn  fuch  judgment  fliall 
have  been  fatibfied,  there  can  be  no  foundation  for  an  application  to  tlic  Board  iur 
compenl'ation  for  a  luppoled  iof"?  arifing  from  fuch  a  judgment.  Legal  judgmenij 
on  the  real  merits  of  tne  demand  where  no  queftion  ol  lawtul  impediment  is  im- 
plicated are  not  liable  to  be  re-examined  bclbte  the  Boaid. 

It  deferves  to  be  attentively  confidcred,  that  there  is  a  material  difference  between 
the  fixth  and  feventh  articles  of  the  treaty  of  amity  in  relation  to  the  lofles  and 
damages  fubniitted  to  arbitration  by  thofe  two  articles,  as  from  their  fuppofed  (Imi-- 
larity,  the  former  may  be  executed  in  a  manner  very  injurious  to  the  United  States. 

The  fource  of  foundation  of  the  fixth  article  is  the  operation  of  legiflatlve  ads 
contrary  to  the  treaty  of  peace,  which  had  cxilled,  and  had  produced  certain  lofTcs 
and  damages  to  Britifh  creditors,  for  which  compenfation  could  not  be  obtained 
in  the  ordinary  courfe  of  jultice  when  the  treaty  of  amity  took  effedl. 

The  fource  or  foundation  of  the  feventh  article  is  the  irregular  captures  or  con- 
demnations of  the  veflels  and  other  property  of  American  citizens  under  colour  of 
avithority,  or  commiffions  from  his  Britannic  majefty. 

The  former  article  reprefents,  that  the  complaints  of  the  Britifh  fubjeds  were 
againft  the  laws  which  had  impeded  the  recovery  of  their  debts.  "^Fhe  latter  arti- 
cle reprefents  the  complaints  of  the  American  citizens  were  againft  illegal  captures 
or  conJem.Mlions.  The  exprelTioo  ufed  in  the  former  article  is  "  operation  of  law- 
ful impediments,"  that  is  lo  fay,  impediments  of  law  or  impediments  of  legifla- 
tive  ads.  The  expreffion  ufed  in  the  latter,  is  •'  irregular  or  illegal  captures  or 
condemnations  *'  that  is  to  fay  judicial  pioceedings  and  fentences. 

""J'he  ftxth  article  of  the  treaty  of  amity  was  not  intended  to  enlarge  the  rights 
of  Britifh  creditors  beyond  vhat  they  were  under  the  treaty  cf  peace  by  relieving 
againlt  the  judgments  ot  the  courts  of  juftice  upon  die  real  merits  of  the  demands 
in  cafes  where  no  quelHon  of  lawful  impediments  had  arifen  ;  but  complaints 
againft  judgments  of  courts  unconneded  with  laws  contrary  to  the  treaty  of  peace, 
are  not  lubmitted  to  arbitration  and  cannot  be  rcdreffed. 

The  fixth  article  does  not  refer  to  the  feventh  in  any  particular  ;  nor  has  the  fe- 
venth any  reference  to  the  fixth  in  relation  to  the  Jubje^i  matter  of  JuhmiJJhn^  although 

in 


(    no    ) 

in  the  fccondfedion  of  the  feventh  article  there  is  a  reference  to  the  fixth  as  to  the 
manner  of  conllituting  a  Board  and  of  receiving  tcUimony  ;  confequcntly  the 
conftruclioa  of  the  fixth  article  is  not  *o  be  inlluenced  in  any  degree  by  the  fevcntli 
article  m  relation  to  the  queftion  of  re-examining  judgments  of  courts  of  juttice 
between  Biitiih  fubjeas  atul  American  citizens,  in  which  no  qucdion  of  lawful 
impedhiicnt  has  btfoii  or  coitld  be  made  ;  and  which  were  rendered  upon  the  merits 
of  the  demands,  independent  of  any  laws  contrary  to  the  treaty  of  peace. 

In  the  refolution  of  the  Board  on  the  queftion  of  v/ar-intereft  in  Cunningham':"! 
cafe  it  i-j  (hted,  that  in  deciding  againft  an  objeaior.  to  the  payment  of  war-intereft. 
they  do  not  preclude,  but  neccifarily  lave  all  obj^dlions  to  the  payment  of  intereft 
which  may  arife  out  of  the  contra^ft,  or  oihi-rfpectal  circumjlances  of  the  cafe. 

The  foregoing  obfervations  ftate  a  ground  of  defence  confiftent  with  that  refo^ 
lution  whicli  had  been  made  concerning  claims  arifing  out  of  debts  contradled  in 
Virginia  j  the  legiHature  of  which  State  in  the  opinion  of  the  Board,  had  pafled 
laws  which  impeded  the  recovery  of  Britilh  debfj.  During  the  exiftence  of  fuch 
lawful  impediments  in  that  State,  (the  period  of  which  the  Boaid  has  not  yet  dev 
cided)  it  is  admitted  that  intereft  on  the  bonded  debts  is  juftly  due,  and  if  not 
obtainable  from  the  debtors,  {hotild  be  paid  by  the  United  States,  ' 

The  defence  here  meant  to  be  taken  is  created  by  it\c  fpecial  clrcumftances  of  the 
cafe  i  and  is  no  more  confined  to  a  claim  for  intereft  than  to  a  claim  for  principal, 
but  is  equally  applicable  to  both  principal  and  intereu.  It  is  grounded  on  this  pio- 
pofition,  that  it  if^  indifpenfahle^  on  the  part  of  the  claimant,  to  ihew  that  the  lofs  for 
which  he  applies  for  com'penfation,  has  proceeded  dircdtly  or  indiredly  from  a  legif- 
Jaikic  a^  in  violation  of  the  treaty  ;  otherwHc  the  cafe  is  not  fubmitted  tothcjurif" 
diiftion  of  the  Board-  In  the  claim  of  Ciurlcr,  OPoorne,  no  fuch  legiflative  adt  has 
been  or  can  be  produced,  and  therefore  the  agent  for  the  United  States  relies  that 
the  Board  will  dilmifj  the  claim,  as  not  being  within  the  6th  article  of  the  treaty 
of  amity t 

JOHN  READ,  JuM. 


i    A 


•i    V 


^4gcni  general  for  the  Uv.ltrd  Stairs, 


MAhj'mc   I79Q. 


(   ni) 


To  the  Commjftoners  for  carrying  Into  EJftcI  the  S/Mtb  Article  of  the  Treaty  of 
^mitVi  Commerce  and  Navigatiotty  concluded  between  his  Britant'Jc  M^" 
jefy  and  the  United  States  of  America. 

The  Memorial  of  William  Shermer,  of  the  Kingdom  of  Great  Britain,  Heir,  Ex- 
ecutor and  Refiduary  Legatee  of  Richard  Shermer,  late  of  Higleworth,  in  the 
County  of  Wilts,  in  the  Kingdom  of  Great  Britain. 

Respectfully  Sheweth, 


■i  V 


JL  hat  the  faid  Richard  Shermer  was,  and  during  hifi  life  continued,  and 
your  memorialifl:  is  and  from  his  birth  has  been  a  fubjed  of  his  Britannic  Majefty. 

Your  memorialift  further  begs  leave  to  ftate  and  fliew  that  John  Shermer,  late  of 
Blifland  Parifli,  New  Kent  County,  Virginia,  deceafed,  on  the  nth  day  of 
June  1766,  made  his  laft  will  and  teftamcnt  in  writing,  in  due  form  of  law  which 
was  duly  and  legally  proved  after  his  death,  to  wit — On  the  13th  of  February 
1775,  in  which  he  devifed  and  bequeathed  the  ufe  and  profits  of  the  whole  of  his 
eftate  real  and  pcrfonal,  to  his  wife  during  her  natural  life,  and  after  death  he  de- 
vifed the  fame  to  be  equally  divided  between  wlioevcr  his  faid  wife  fliould  think 
proper  to  make  her  heir,  and  his  brother  Richard  Shermer  who  furvived  the  fliid 
telktor,  and  he  appointed  his  faid  wife  executrix  ;  and  Trufton  James,  Dudley 
Richardfon,  Geoige  Booth  and  Thomas  Booth,  executois  of  the  faid  will,  with 
powe  and  direftions  to  fell  the  faid  elhite  after  the  dtccafe  of  his  faid  wife,  as  by 
the  faid  lafl  will  and  teilament,  a  copy  whereof  is  annexed  will  appear.  Your  me- 
morialift  further  begs  leave  to  ftate  and  fliew  that  Ann  Shermer,  the  wife  of  the 
faid  John  Shermer,  furvived  the  tcftator  fix  days,  and  on  the  15th  day  of  January 
1775,  (lie  departed  this  life  inteftate,  and  without  having  made  any  gift,  or  appoint- 
ment whatfoever,  in  confequence  of  the  power  given  her  in  and  by  the  faid  will. 

Your  memorialift  further  begs  leave  to  ftate  and  drew  that  afterwards,  to  wit — 
On  the  13th  day  of  February  1775,  the  will  of  the  faid  John  Shermer  was  duly 
proved,  the  other  executors  therein  named,  qualified  as  fuch,  and  foon  after  pro- 
ceeded to  lell  the  whole  eftate  of  t!ie  faid  teftator,  to  the  amount  of  eleven  thouland 
pounds  and  upwards  on  credit,  taking  bonds  with  fccuiity,  payable  the  lit  day  of 
May,  1776. 

Youi 


( 


1 1. 


) 


Y,„  -um^rlalift  funhcr  fia.«,  avers  and  refpclfully  inCft^,  tl«.  I.y  Ac  dcvifc 

e(l.to  and  their  fureties  were  the  real  and  borufide  debtors  of  the  iaid  R.cha.d. 

Your  n'-morialift  further  (hews,  that  notwilhfranding  the  whole  proceeds  cf  the 
f.i]:;LT;vr  .dlly  daeto  thcnUd  Richard  Shcr.er,  ^1-  fa.d  execu^^^^^^^^ 

b  '  nl^ld  by  ^decree  of  the  high  court  of  chancery,  afhrn^ed  by  U^^oun  o^  ^ 
peals  of  Virginia,  in  a  fait  brought  by  your  memoria  ills  againft  the  «^^';j^"J^^^[^ 
for  of  the  will  aforefaid,and  the  reprcfentatives  of  the  next  of  km  of  the  faid  .vnn 
Si"  ner,  hlch  decree  is  a  lawful  Impediment  fine,  the  peace.  F--  -[>  VJ^  ^,^ 
Lrialift  from  recovering  a  debt  bona  fule.  contraded  betore  an  fhll  juftly  due  a.d 
owing  to  your  memorialUt  a.  rcprcfentat,ve  ofh-s  deceafed  fathe.. 

Your  memorJal^fcfurtlierbcp  leave  to  flate  and  (hew,  that  Dudley  Richardion 
iourmemor.a-.iL  Shermcr  and  attorney  in  fa^ 

\nator26n   2   6  Virginia   currncy,    principal,    and  /.  199    i?   ^^   '"^ ''   '" 
he  nap^r  currency  of  the  United  States,  depreciated  to  a  great  degree    inrtead   o 

inent  hereunto  annexed. 

^nd  vour  memorialia  further  ftates,  that  although  neither  the  United  States  or 

u'  ;™x™:;.'tcdi:d  dVcLrgcd  fr„™  acco.,m»g  with  you.  mcmoruhlt  o-J.«w,fe 

than  by  delivering  the  laid  certificate.  y^^^^. 


(    "3    ) 

Your  memorlallft  therefore  avers,  that  by  reafon  of  the  decree  aforefald  he  U 
prevented  from  recovering,  and  has  totally  loft  the  principal  fum  of  ^^7473  1 1  6| 
Virginia  currency,  and  2"«878  8  3i,  the  intereft  thereon  calculated  to  the  firlt 
of  May  I  798,  for  which  two  fums  and  the  intereft  fmce  accrued  and  to  .^ccruc  ;  he 
prays  this  his  claim  may  be  received,  and  that  fuch  award  may  be  made  thereon  as 
equity  and  juftice  fhall  require. 

WILLIAM  MOORE  SMITH, 


General  agent  far  claimants. 


toth  November,  1 798. 


•/o  the  Commr/fmers  for  carrying  into  Effia  the  Sixth  Article  of  the  Treaty  of  Amity, 
Commerce  and  Navigation,  concluded  between  his  Britannic  Majejiy  and  the 
United  States  of  America. 

The  Anfwer  on  the  part  of  the  United  States  to  the  Memorial  and  Claim  of 
William  Shermcr,  Heir,  Executor  and  Refiduary  Legatee  of  Richard  Sherner, 
deceafed. 


^ 


The  memorial  reprefents,  that  John  Shermer  the  brother  of  the  faid 
Richard  Shermer  refided  in  Blifland  parifti,  new  Kent  county  in  Virginia,  where 
he  intermarried  with  Mrs.  Ann  Read.  That  on  the  nth  June  1766,  the  faid 
John  Shermer  made  his  laft  will  and  teftament,  which  was  proved  on  the  13th 
February  1775.  By  his  will  he  devifed  to  his  faid  wife  the  rents  and  profits  of 
his  whole  eftate  during  her  life,  and  after  her  death  he  devifed  the  fame  to  be 
equally  divided  between  whomfoever  his  faid  wife  (hould  appoint  for  that  purnofe, 
and  his  brother  Richard  Shermer,  who  gave  a  power  to  the  executors  to  fell  the 
eftate  after  the  death  of  his  wife. 

That  Mrs.  Shermer  died  on  the  13th  January  1775,  fix  days  after  her  huiband, 
■without  making  any  appointment  under  the  power  given  by  his  will. 

P  That 


(    1J4    ) 

IlCoora'ptas'tSdu!  :„1 .1  bed,  «.h  fcc.-,ty,  p..,U.  .  KU  May 

'  Th«  hy  .he  devire  afccf.ia,  no.hl„s  F^J^  *;,r"„ti!.::'"  ^rh^.:"'. 
l,;s  .ife  bat  a  life  elU.e  ».th   a  P^" ,  °  ^.f  =  ,''^';'  he  fole  ,.ro,,e„y  of  .be 

was  a  trullce. 

That  although  the  .hole  of  the  faid  eftate  .vas  the  propeny  of  Richard  Sher- 

n.cr,  the  executors  diftributed  ^--^/.^^  "^^^  °  .^If  of  the  p  ocefd   of  the  fuid 
/5   72    19   8i  Virginia  currency,  ^^^^^^  ^^'^^  ""^  1^*^^^^^^^^^^^  high  court  of 

fh",  whkh   diftribution   has  been  ^PProv  d  b^  a  dc  r  t  0    i^.      L 
chancery,  and  affirmed  in  the  court  ot   appeals   >"  V.rg  ma    ma  g^  ^_y 

the  claimant  aguinft  the  f-vwing  execu^r     "^^;;- Pf^^^^^^^^^  ^nce  the  peace, 

;:;^2;gT;;r^e?o:^;rS^^^  ^^^-^  - 

the  claimant. 

The  ™e.o..,  f->'=;„tri„ra^oii^^.J^st"a  sre;l*Varc:::;::ued 

John  Shermer,  as  the  attorney  \"  *^";\\°  J  '  ^,^^  ^^^^^  Ri,h^rd  Shermer,  other 

iy  Unlaws  of  Virg.ma  to. ^^^^^^^^^^  ,0^,677  ^  6  r-cipal, 

part  of  the  debts  due  '«  K-^'^'"^       currency,  part  of  which  he  loaned  to  citizens 
Ind  £199   ^7  .6i  •"^7";"J^i;'eere  ed  I  cording  to  the  fcale  of  depreciat  on , 
of  Virginia,  which  has  ^7^^^/;^"  ^^'^J^hc  dcpofited  in  the  treafury  of  Virginia, 
another  part  amounting  to  ;^i646   'O  o^'^  '^^P 
and  obtained  a  certificate  worth  ^^  1    130- 

r^u      u    CA  nnrllev  Richardfon,  has  been  difcharged  from  accounting  with 
That  the  fa^  Dudley  R^^^^^^^^  the  real  and  nominal  amount,  having 

^eL  cSd  fo  the  f^:?!  nominal  amount  of  the  faid  fum  as  if  paid  in  fpecie.        • 

for  afawlra' Jd  fuch  further  fum  as  equity  and  juftice  may  require. 

This  claim  is  made  o.  ^^^^^^^^.f^,  ^^^f^^^^- 
half  of  theamountof  the  falesot  Johnbiier  ^^^^   ^^^^^^^^^^ 

tions  of  hiswill,  afterdeduaing  /I   6   .6   -^  ^^  ^^^^       ^^  ^^^ 

which  fum  °ff5J7*  »9^^^^^^^^^^^  of  Virginia,  and 

reprefentatives  of  Mrs.  bhermei,  oy  ^ 

the  decree  affirmed  in  the  court  of  appeals  m  that  btalc. 

The 


y 


(    »'5    ) 

The  claim  is  dfo  made  for  the  further  fum  of  ^^2677  2  C\  received  by  Dud- 
lev  Richardlon  as  agent  for  Richard  Sheimcr  in  May  1776,  and^^K/;  »?  t>» 
for  intcrell  on  thu  fum  alfo  received  by  liim.  Of  this  £v\G\  19  b  is  Hated  to 
have  been  loaned  in  177?  and  1771;.  tor  the  benefit  of  Richard  iShermcr,  and 
/•i6a6  10  was  paid  in  I7!i2,  into  the  trcafury  ot  Virginia  on  h:3  account,  which 
with  the  fum  of /"Sz  6  6  charged  for  commilfons  on  that  payment,  will  leave  a 
balance  due  in  paper  money  to  the  executor,  of  ^,'13  16  i  as  app'-ars  trom  the 
executor'^  account  tiled  in  chancery,  and  which  accompanies  the  cLuu. 

The  following  circumftances  appear  from  the  anfwer  of  Dudley  Riehardfon  to 
the  bill  of  the   claimant    exhibited    3th   November    1789,  and  m   anhvcr  to  the 
amended  bill  filed  in  Augull  1  7r>y.     That  Jolin  Shermcr  iiad  acquired  the  ijrcat.r 
part  of  his  fortune  by  his  intermarriage  with  his  wife  Ann,  that  he  had  frequently 
declared  in  the   prelence  of  the  faid  Dudley  Richardlon,  that  it  he  out-iivcd  his 
wife  he  would  divide  one  half  of  his  elLie  among  her  relations,  in  the  manner 
ftie  Ihould  think  moil  proper.     That  the  faid   Dudley  Richardlon  Ihoitly  after  the 
death  of  the  faid  Ann  Shermer,  having  conlulted  with  two  of  the  molt  eminent 
counfel  then  in  Virginia  on  the  will  of  John  Shermer,  they  gave  it  as  their  opinion 
that  the  reprefentatives  of  Mrs.  Shermer  were  entitled  to  a  moiety  of  John  bher. 
mer'selhte.     Th:>t  he   wrote  to   Richard  Shermer,  enclofing  him  the  will,  and 
comes  of  the  opinions,  with  the  luppofcd  amount  of  John  Shcrmei's  eftate.      fhat 
fhmtly  after  he  received  a  letter  of  attorney  from  Richard  Shermer,  with  mllruc- 
tionsto  receive  and  colle(5l  his  proportion  ot  John  Siiermer's  ellate.      That  in  con- 
fequence  of  the  letter  of  attorney,  the  laid  Dudley  Richardlon  divided  the  cftateof 
John   Shermer   with  the  other  executors,  and  received  for  the  faid  Richard  in 
bonds   bills  and  accounts,  ^'5372   19  54  and  paid  the  other  legatees  their  refpeft. 
ive  proportions.     That  the  laid  i-udley  Richardlon  undertook  to  coiled  the  pro- 
portion  of  the  eftate  belonging  to  Richard  Sliermer,  with  intention  to  make  remit- 
tanccs  to  him    which  he  was  unable  to  do  owing  to  the  war.     That  a  conhderable 
lofs  has  happened  thereon  from  depieciation  in  paper  money.     That  having  taken 
the  opinion  of  rounfel  and  communicated  the  lame  to  the  laid  Richard  Shermer, 
who  not  only  acquiefced  therein,  but  duedted  his  proportion  to  be  collee-led,  he 
conceived  he  had  aded  accoiding  to  law  in  dividing  the  eftate.      ihat  Richard 
Shermer  never  claimed  more  than  a  moiety,  although  he  received  a  letter  from 
him  in  the  year  1783,  by  the  hands  of  the  prcfeni  claimant  whom  he   faw  fre- 
nuentlv  in  that  year,  and  who  alfo  never  hinted   to  the   faid  Dudley,  that  there 
wis  an\  claim  but  to  a  moiety  lei  up  by  his  hither,     'i  hat  the   reprdeniatives  of 
Ann  Shermer  were  numerous,  and  m  dilperkd  iituations,  and  that  great  alteration  • 
of  property  had  taken  place  among  th^m  fmce  the  diviiion  of  the  ellate. 

On  the  7th  September  1792,  this  caufe  came  on  to  be  heard,  on  the  bills, 

anfwers,  exhibits  ana  examinations  of  witnelles,  and  was  then  argued  by  counicl. 

On  conhderation  wheieuf,  the  court  gave  it  as  their  opir^on,  that  in  the  devile  to 

^•.  wife  by  thetataior  John  bhcrmcr,  itated  in  the  biii,  tlie  words  «•  during  her 

■'  "  natural 


^ 


(  »'<5  ) 

"natunllife"  ought  not  to  be  applied  to  that  moiety  of  his  eftatc  of  which  Kc 

eS^that  Jokty  which  would  continue  after  her  <leat>,  namely,  the  .^M./.pro- 
eny  Vourht-Iobe  confined  to  the  other  moiety  wh.ch  he  gPvc  to  h.s  brother 
S  rd  Shermer,  and  in  which  he  intended  her  intereft  fliould  co  unue  no  longt^r 
ihan  me  ^oud  li  o.  and  confequently  that  tl.e  plaintiff  is  not  ent.tl  d  to  the  w.ic'. 
moiet  and  therefore  doth  adjidge,  order  and  decree,  that  the  bill  of  the  pam- 
Xchimina  the  laft  mentioned  moiety  be  difmiired,  a.  it  is  accord mgly  hereby  fo 
fir  diS;  and  do  further  order,  that  the  defendant  Dudley  R.chardfon  fettle 
au  account  of  his  adminiftration,  &c. 

On  the  iSthOaober  1794,  the  decree  of  the  court  cf  chancery  was  affirmed 
in  the  court  of  appeals. 

The  deliberate  decree  of  the  chancellor  of  Virginia  on  ihc  coMon  of  a 
devil-c  independent  of  any  la'u^  operating  upon  the  nghts  of  Bntiilx  fubjeas  and 
wUhoutany  reference  to  the  national  charaaers  of  thepart.es.  which  has  be  n 
Xmed  in^he  court  of  appeals,  is  reprefented  as  an  vvpcd^mcni  contrary  to  tho 
treaty  of  peace. 

As  to  fo  much  of  this  claim  as  feeks  relief  againft  this  decree,  the  agent  for  the 
United  States  reds  the  defence  on  two  grounds,  ift.  i  hat  judgments  or  decrees 
of  compe  ent  courts  on  the  real  merits  of  the  controverfy.  unconr.aed  with  the 
irJcharaaer  of  the  parties,  and  where  no  qucftion  concerning  the  operation 


upon  this  point  the  agent  prays  leave  to  r....  .  :.  Bo.:rd  to  .he  anlwer  in  the  cafe 
Tcharles  Olborne.  ad!  That  the  decree  in  relation  to  the  queftion  whether 
Rid  ad  Shermer  was  entitled  to  the  whole,  or  to  the  moiety  of  the  teftator's 
property  and  eftate,  is  juft  in  itfelf  and  fuch  as  a  court  of  equity  ought  to  .uvc 
decreed. 

The  divifionof  the  eftate  of  John  Shermer  was  made  in  1776,  in  confequence 
of  th.  opinion  of  two  eminent  counfel,  that  fuch  was  the  intention  of  the  teilator 
which  opinion  had  been  fent  to  him,  with  ",e  will  of  John  Shermer,  from  which 
Sabd  all  the  information  that  Dudley  Rjchardfon  poffefTed  and  in  whicn 
opinbn  heacquiefced.  After  this  he  appointed  Dudley  Richardfon  his  attorney 
"n  fa^!  as  to  his  moiety  of  his  brother's  eflate.  There  was  no  change  in  his  opi- 
nion  a  to  the  operation  of  the  devife  after  the  war  or  during  his  life  time  ;  but 
after  his  death  the  prefent  claimant  who  is  his  fon,  filed  the  bill  on  which  the  fore- 
going  decree  was  made. 

Upon 


(    n7    ) 

U„on  the  bill  and  ;.nfwcr  v/ith  the  exhibits  and  proofs,  the  chancellor  conhdcrcd 
Upon  the  U  u  ana  ^^^^^^  ^^^^j^        ^^  ^t^^  j,^,,,    ^ 

S;:  :;         T^  d^Xr:r  connitcu  V  ith  the  pM^lcso^  c^:'y  -d  comported 
t  th   !  c  iv/  «L  o  •  John  Shenncr.     The  greater  pavt  ot  his  eUute  had  eon^o  u  u 

cftate,  was  natural  to  a  perfon  lennblc  of  thok  ^'^  "  ^'^  ^;V\)f  the  v.ill,  dilHna 
..n,iprfVnnH      1  he  powcr  2  ven  to  her  in  the  will,  to  diipol..  ot  a  moiccy      u< 

r;,»fc«Kof .» *.,.  .here  *v;r;;'i/t{o;. "' 'Ti.rin"::i::"'on; 

legal  operation  of  the  word,  m  "'»-^  j^J^^  /„  fol  ixetl  and  fettle.l  rule  of  I..W ; 

rreTnSro-ffornlhr?  c  f  ^^^^^^^ 

rules  of  law.     A  llmilar  decree,  it  is  behevcd,  would  have  been  made  on 

the  court  of  chancery  '.n  England. 

The  remaining  pan  of  the  claim  is  for  ^^877  o  °\^'=t='' '{'X^J  sSe*;* 
Dudley  Ricl-dlon  as  agent,  under  the  power  given  him  by  Ri^had  ''hcrmc  . 
nan  of  wh  ch  the  agent  loaned  on  bonds  and  the  remaining  part  he  paid  in  o  tlu. 
r:X*'vir'2nff:     ■r'-^=%/^f;?,rp1,:erTL^eK;ra™d'piJmont'. 

rj";\";x«s:rnd"e";;cifcdlhete'::.horh;::^e\RichL^ 

eoulf have  elccf^d  had  he  been  prefent.     Under  fuch  eireumftanee,  -he  reeeipu, 

Strt=S:ed^:.csr"^^^^^^^^^^ 

gWen  a  fmal  dlfcharge  for  the  old  debts,  and  who  voluntarily  releafed  them. 

With  refpea  to  the  loans,  they  were  In  paper  money,  and  the  ^r=cle  value  ut  the 
tlmTof  thcfe  loans  has  been  fully  paid,  and  to  no  more  is  there  a  juil  title. 

This  nartof  the  claim  being  for  depreciauon,  it  is  contended  not  to  be  within 
them    nTngat  intent'^fthe  treaties.  L  the  -afons  which  have  been  i^.n^^^^^^^ 
Ihe  Board  in  the  cafe  of  Dulany,  to  which  the  agent  for  the  United  States,  that  he 
may  avoid  repetition,  prays  leave  to  refer. 

On  the  conftruffionof  the  treaties  on  the  chiim  for  i«e;;cft.  -  *e  jurifduSion 
of  the  arbitrators,  and  other  matters  for  th.  conMcraron  of  the  Board,  the  ageM 


(    ,i8    ) 

for  the  United  States  refpeafully  refers  them  to  the  arguments  heretofore  laid  be- 
fore  the  Board. 

JOHN  REA.D,  JuN. 

Jgent  general  for  the  United  States 

*. 

fth  June^  1799' 


Extraafrom  the  Anf^er  on  the  part  of  the  United  States  to  the  Claim  of  Wiina>n 

Cunningham  l^  co. 


The  United  States  and  his  Britannic  majcfty  have  conftituted  by  mutual 
confcntan   extraordinary  tribunal  for  hearing  and  deciding  the  fpecial   cafes  con- 
tained in  tl.e  6th  article  of  the  treaty  of  I794.     As  the  cognizance  cfth.stnbunai 
is  esprefsly  limited  to  fpecial  cafes,  nothing  can  be  more  md.fpenfably  requifite  than 
to  underaind  the  limits' which  are   let  to  it.     In   arbitraments  between  man  and 
rnan  under  the  municipal  regulations  of  a  State,  it  is  a  rule  that  the  arbitrators  ought 
^ot  to  exceed  their  jurlfdidlon,  and  if  they  do,  a  remedy  may  be  eafily  fupnhed  in 
S°e  ordinary  courfe  'of  juftice,  for  by  the  civil  as  well  as  the  common  law  an  award 
ujon   a  call  to  which  the  fubmifiion   does  not  extend  is  void.     In  arb: tramen ts 
between  nation  and  nation  the  fame  rule  prevails  that  the  arbitrators  ought  not  to 
exceed  their  jurifdialcn,  but  If  they  do,  there  being  no  common  controuln^g  power 
o  correct  thi  error,  each  nation  has  a  jult  right  to  judge  lor  itielf,  and  may  jultly 
confideras  void  every  arbitrament  upon   a  cafe  out  ot  to  limited  junididion 
This  obfervatlon  is  made  to  imprcfs  on  the  commiffioners  the  primary  importance  of 
vnderftanding  the  limits  which  are  prefcrib.d  to  them  by  the  terms  ot  the  article : 
For  fliould  an  error  unfortunately  occur  on  this  point  it  may  lay  a  foundation  tor 
diflippointing  all  the  good  confeciuences  that  have  been  expeded  from  the   article, 
and  perhaps  for  renewing  the   diflenfions   between  the  two  nations,  which  it  is  fo 
defirable  Ihould  be  forever  compofcd. 

In  expreffinaon  the  part  of  the  United  States  theiropinion,  that  it  is  necemirily 
referved  to  eac1.  nation  to  determine  for  itielf  whether  an  award  is  within  the  Iphere 
of  U.e  fabminion.  it  is  not  meant  to  alfert  that  tlie  arbitrators  are  not  to  decide  for 
themfelves  whether  a  cafe  is  cognizable  before  them  or  not,  but  it  is  meant  to  aflcrt 


i\ 


(    n9    ) 

^  f  1  ,l.u  /7- ,//  fhchh  a  cafe  to  h:  cognizable  hifurc  them,  yet  ifU app:ars  to  cHLr 
that  though  \^^'yJ-''-^%''^'?JZ  n'l  rh'ht  to  dUW'nird  the  aivard.  It  tfus  were  not 
ration  that  U  u..,  "f  ^^^J^^i^n  a lu^^itcd  and  an  unlimited  h:bn.ifllon, 
T?  H  ^^not  1^^  the  conSoners  nnght  determine  any  and  every  que  boa  upon 
^'  '^''  ;rv'rv  a  tea  ^S  concern  the^wo  nations.  Thousb  tins  qnnion  >s  fo 
any  and  ^^.^^X/.^  '^^^^^^^^^  „,,a  not  be  fupported  by  any  authority,  yet  what  a  learned 
reafonable  in  itfe    that  it  n  ea  n  ^  ,^  ^^  ^^  ^^^.^^^^     ^^^^^^  ^^j^^^^^^  ^^ 

modern  writer  has  «^^'^  J^  l^^^^^^^  2L,,s,  "  It  may  then  happen,  as  in  the  exam- 
thearbhration  of  nation     d^fpu^^^^^^^  exceed  their  power,  and   pafs  their 

"  pie  juft  alledged,  that  th^^^^^^^^^   really  fubmitted  to  their  deeilion  :  And  bang 
..  judgment_o«  ^^at  has  not  b^^^^^^^  Y  ^^  ^^^^^  ^^^  ^^  ^^^^^^^  ^,^,y  ^,^ 

«  called  to  judge  of  the  ^^^  ^^^^^^^^  ^    ^^^^^^^     Certainly  that  State  never  gave 
..   condemn  it  to  become    ube^.o  ^^  ^"^         ^^^^^^^^  ^^  ,^„,  binding.     To  avoid 

"  '^f!;^^'  ?''"?:!  toCe  away  ecy  pretence  from  bad  faith,  it  is  neceffary  to 
all  difficulty,  and  to  take  away  ev     >  y  of  the  difpute,  the  refpealve  and 

determine   e.atfly  tn  the  cornprmfi,  U    J^fJ'^.^^^^  ^  ,f^^  J[,,^     Thi. 

s  what  IS  fubmiued   o  -b m  a^or  .   _^  ^  J,^^^^^  ^.^^.^  ^^^     ^^^^^  ^^  ^^^^^,„ 

judgment.     It   hen  their  .^  manifeiUy  unjurt,  fince  it  is 

Hence  .  .,>»=-  if  a  f  J  J'^^ ,  tilSlthVtotlt^LtrjJ^c:^^^^ 
llir^'^^t^JSr^b^rtftrcafe  bro't  of  ,hc  f.b.iffio„,  the„  *=  fcnte„cei. 

not  obligatory. 

f  ,-,n^  w3<5  formed,  the  courts  of  juftice  In  all  the  States  of 

When  the  treaty  ^^  '  7^4J^  J^Tn^wn  to  the  negociltors  on  both  fides  as  well 

America  were  open,    ^^'l''^' l'^^  fo^,        ^icular   and  extraordinary  cafes  m 

as  to  both   nations.     ^"^  f^'^^  J'J„\brin  L  ordina^^  and  to 

^vhich  complete  julhce  was  "0^ ^"ainab  e    n  tn  y^.^^^^^^^     ^^^  ^^^_ 

decide  thefe  a  particular  and  extraordinary  tnbuna  ^  ,,ho  arc  alike 

ing  been  made  between  ^-^.-^^^^   f;  ^^  ^^^^^^^^^  tie  fa^e  empire    and 

in'' manners  and  morals,  ^^jl\H^^  j^^^fj^Xd  from  the  fame  fources,  it  may  b' 
v,hofe  princples  and  ideas  o^^^^^^^  ^^^^  ..^ies,  and  efpecially  that  ther. 
hoped  to  receive  the  fame  ^Jterpietatio  ^^.^,^  ^  ^^^^  ^^^^_ 

will  be  no  difagreement  ^^^P^f  "S  !^' "^'if^^     ,e  propofed  difcuffion  much  aid 
„,iffioners  who  are  fekaed  to  ^ecf  upon  it       I      .e  prop  ^^^  ^^ 

^vill  be  fought  by  the  agent  f^^.^j^^.y^/^ifi'^^^^/r  Britifh  courts.'whofe  pure 
equity  recogmzed  ^Y  ^^^^^^^^^^^^^^^^  it  has  been  the  fource  of  hap- 

^t;^^::^^^  !^-'^^^-  anobjeaof  thehigheaadmiration 
among  mankind.  Commissioners' 


« 

« 

(( 
(( 


I20 


Commissioners*  Office, 

Philadelphia,  i%th  Jpril,   1 798. 


Present, 

Mr.  MACDONALD, 
Mr.  RICH, 
Mr.  FITZSIMONS, 
Mr,  GUILLEMARD. 


In  the  Cafe  ©/"William  Cunningh.^m,  and  others. 

The  anfwer  of  the  United  States  figned  by  their  agent,  having  In  this  cafe 
been  printed  and  laid  before  the   Board,  ORuERED-That  the  general   agent 
f     .him^ntc  or  attornev  for  thefe  claimants,  have  leave  to  fee  and  reply  to  the 
tneS"n  h    e^Teks/butwi^  the  exception  of  the  mtroduaory  argument  «;  to 
[mprefs  on  the  commiffioaers  (as  it  Is  there  faid)  thepnmaty  importance  of  unaer. 
ftanding  the  limits"  of  their  duty,  and  inftrufting  them,  on  the  authority  ofVattel, 
Ird  with  reference  to  a  fuppofed  cafe  of  manifeft  and  intentional  wrong,  m  the 
extd"  trS  ta^^^      care  that  they  do  not  "  renew  the  diflentu^ns  between  the  two 
natW  by  deciding  in  a  manner  fo  palpably  "  aifurd^  or  fo  clearly  proceeding 
from  "  Jruption.  or  flagrant  parUalUy^  as  to  entitle  "  eUher  natton  to  d:fregard 
«  S.  a'^ardJ'     The  Board  make  no  further  animadverfion  on  the  above  argument 
than  thu^  to  (late  its  import,  and  prohibit  all  allufion  to  fuch  topics  m  future.     They 
know  no  policy  but  that  of  juftice,'  and  look  forward  to  no  confequence  but  the  con- 
fcioufnefs  of  having  done  their  duty. 

ORDERED— That  the  reply  tn  this  cafe  be  printed ;  that  this  order  be  therein 
fully  recited,  and  copies  hereof  ferved  upon  the  agents  for  both  parties. 

Extraaedfr«m  the  proceedings  of  ih^  Board. 

G.  EVANS,  Secrbtary. 


*^  '* 


Agent 


(      121     ) 


Agent  General's  Office, 

Phlladelpbiay  26th  Jprll,    1798. 

t 

J  HE  aaent  for  the  United  States  enclofes  to  the  Board  a  letter  addrefTed 
to  him  fiom  the^Attorney  General  of  the  United  States.  It  relates  to  their  order  ot 
the  I  8th  inrtant,  which  prohibits  all  allufionsin  future  to  the  junfdidion  ot  the  arbi- 
trators and  direds  the  claimant  to  take  no  notice  of  this  argument.  As  it  is  ot  the 
utmolt  importance  to  the  United  States  clearly  to  underhand  this  ptohibition,  their 
r.gent  reipeafuUy  rcqueft  of  the  Board  fuch  explanation  of  the  order  as  they  may 
pleale  to  give. 

JOHN  READ,  JuN. 

/Igent  general  for  the  United  States^ 

To  the  Commyjioners  under  the  fixih  art'ich  of  the  Treaty  of  Amity, 


Attorney  General's  OfficEp 

Philadelphia,  zxih  Jprily  1798^ 


Sir. 

1  HAVE  read  and  conndcrcd  the  order  of  the  Board  of  CommilTioners 
bearlnodatc  the  i8th  of  this  monih,  rctaiive  to  that  part  of  the  argument  which  in 
the  cate  of  V/illiam  Cunnm!;ham  and  company,  related  to  the  limited  juii  duHion 
of  the  arHtrators.  I  did  not  fuppofe  that  the  obfervations  which  were  made  upon 
this  point  could  have  beer;  mifapprchcndcd  in  the  manner  llicy  api  car  to  have  occn 
by  the  Board,  and  I  yet  indulge  the  hope  thit  when  the  quuiution  from  V  attd 
fin  be  undcrlloo-il  by  them,  as  kisby  me,  that  it  will  not  be  tliuught  in  the^  icnlt 
* "  J  ^^  degree 


(     124    ) 

U' C.mu.\Wnks  Ae  award  o|na™,,»l-.bu^^^^^^^^^ 

r„bmiuc>lto  tl.cm,  tl>=  «vara  '''f '="„''''="  7,^  not  within  tlie  terms  ot  the  lub- 
vo^c  fel-li""  ■'  *=  °*='  *'"=T  tr,^  ke"o  make  an  av/ird,  though  .t  be 
'Xnr*=  »*'ra,or3  ftall  '7°"l";]^j:  ^^^^^^^^^^  The  former  is  not 

neither  anjud  nor  ablurd.  ^^  1"°  "^^J™  ^c  poff'ble,  and  the  latter  only  .s  tl, 
conteml.l..ted  in  any  partoftnc  ■"R""«"  ]°    -^^.^^  |„ped  the  ob1er.at.ons  v;ou.J 
^,:i.  to\vhici>  the  <,t.otat,on  .sa,       d   -  „,„,\u,t  tire  lo-port  ol  the  aoov. 

:;;::r.;:tfretcoVsU-''wthcBoard. 

°n,ave  always  en.er.ined  *.  o,nlo„  .1^^^^ 

fto  Id  n  cvirv  cafe  be  made  as  ear^  »M»  fibk;^^^"^^^^^  This  retnark  has  been 
cludc  the  trouble  ant",  the  ";l«"«„°^„f",  ,  „"  ed'ed  the  elaimant  to  take  no  no- 
„,ade  b^eaufe  the  Board  in  the.r  «*='  '^^^^^^  ^y      „„derlland  the  rmpo     o  it 

ticcofthis  argument,  and  having  ■•=«'^""'  proceeded  to  "  proh.b.t  all  aUu- 

as  well  as  d>e  applieat.on  ol  h  I""  «'°"'  'i^;,.  ,!„„  ^re  Board  f  !-«*'=  P™^" 
«  fions  to  fuch  topics  m  future.        I  am  at  a  i  ^^^^^^  ^^^^  go^j, 

birionlTo  be  und^rftood  Do- tt  mean  r  a  -^  ft^»;>=^^  ,-  ;ao„  of  the  otK 
vhlchthe  a"eM  for  the  United  titatcs  '"f","  •  |  .  ,hat  he  mall  be  prohibitea 
^S:  of  the  treaty  on""'ty;CO|.>mcrc  -^J.  X';,;^  ^oard  and  therefore  that 
from  endeavoring  «»."'="!'"',„  he  made  arainii  the  United  States,  and  if  made 
an  award  in  fuch  cale  ""S^'  ™"° ''^^^^^^^^^^^  ,oid.  Does  it  mean  that  rt  ,s  the 
aoainft  them  may  be  uftly  ««■'"'''' "J"!  Lu  be  made  by  them  concerning  a  debt 
S  n  of  the  Board  that  wl>«"I' "^^'^  Sen,  con.raaed  before  the  war,  w.U 
7u.  to  a  Britillr  fubjea  ronr  »"  Arnarcan    t^J  ^^^  ^  ^^  ^^^^^  ^^  ^^^^^^ 

This  topic  I  formerly  .iewed  and  f^  ^t^;^^!^^'^^ 

niay  plcafe  to  give. 

J  am  Sin  very  refr^e^My.  your  okdknt  fervani. 

CHARLES  LEE. 

To  JOKN  READ,  Eso^ 
-      I    TT  •,  1  <::t^tpi  relative  io  Brlt'ipi  aehts. 
Junt  for  the  United  i^tates  reimvi; 

Commissioners' 


(     123     ) 


Commissioners'  Office', 

Philadelphia,  2'jth^prili  179S' 


Present, 


Mr.  MACDONALD, 
Mr.  RICH, 
Mr.  FITZSIMONS, 
Mr.  GUILLEMARD. 

A  REPRESENTATION  from  the  ^Z-^J^^^'^jt  'oT  oTt 
letter  from  the  attorney  general  «rt"rSat3*e8Th  cur  ent.  having  been 
Board  in  .he  cafe  of  Cunningham  and  others,  aated  the  lom 
fead  and  the  faid  orrfer  having  been  alfo  read. 

RESOLVED-That  the  -"^^f/'-.^^ffjl^^r.^TTLd  A^^mlt 
are  dear  and  explicit  and  the  8'""f'  ^'^^'^f  ^;''"jS^^^^^^  with  the 

to  which  in  future  .s  thereby  FohA'ted)   •>"=  »°  '°"  ^  .    ^y  •„  ^.e  intent  and 
primary  and  important  que  hon,  ''f  '-^-j^^f  ,^^7/     fe„tati,    that  the  agent  for 

r?;r/srr„r.u:e^:;™\isSftLeudeU^^ 

not  fubmitted  to  the  Board. 

Extracted  from  the  proceedings  of  the  Board, 

G.  EVANS,  Secretary. 


